Friday, December 15, 2017
Are you familiar with the National Center on Law and Elder Rights? If you are an academic teaching courses about any aspect of elder law, disability law, Medicare or Medicaid, you will want to know more about this resource. If you are working in a legal services organization that represents older clients or disabled adult clients, you will want to now about this resource. If you are a young lawyer and just handling your first case involving home-based or facility-based care for older persons who are can't afford private pay options, you will definitely want to know about this resource. In fact, if you are a long-time lawyer representing families who are struggling to find their way through an "elder care" scenario, you too might benefit from an educational "tune up" on available benefits. And the very good news? This is a free resource.
The National Center on Law and Elder Rights (NCLER) was established in 2016 by the federal Administration for Community Living. The new entity is, in essence, a partnership project, with the goal of providing a "one-stop resource for law and aging network professionals" who serve older adults who need economic and social care assistance. Justice in Aging (formerly the National Senior Citizens Law Center) which has primary offices on the east and west coast is a key partner, working with the American Bar Association's Commission on Law and Aging, the National Consumer Law Center (NCLC), and the Center for Social Gerontology (TCSG). Attorneys at these four NCLER partners provide substantive expertise, including preparation of materials available in a variety of formats, such as free webinars on a host of hot topics. The Directing Attorney is Jennifer Goldberg from Justice in Aging and the Project Manager is attorney Fay Gordon.
It strikes me that a very unique way in which NCLER will be a valuable resource is through what the offer as "case consultations" for attorneys and other professionals. Think about that -- you may have long-experience with one branch of "elder law" such as Medicaid applications, but you have never before handled an elder abuse case with a bankruptcy problem. Here is the way to potentially get experienced guidance!
The web platform for NCLER offers a deep menu of resources, including recordings of very recent webinars and information on future events. I recently signed up for a January 2018 webinar program on elder financial exploitation and even though it is a "basics" session I can tell I'll hear about a new tools and possible remedies, as the presenters are Charlie Sabatino and David Godfrey. I just watched a recording of another recent webinar and it was very clear and packed with useful information. There is a regular schedule for training sessions -- with "basics" on the second Tuesday of every month and more advanced training sessions on the third Wednesday every month.
I confess that somehow NCLER wasn't on my radar screen until recently (probably because my sabbatical last year put me about a year behind on emails -- seriously!) but I'm excited to know about it now.
December 15, 2017 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Social Security, Web/Tech, Webinars | Permalink | Comments (0)
Thursday, December 14, 2017
In a new article published by Xu Han (Florida Atlantic), Niam Yaraghi (University of Connecticut) and Ram Gopal (University of Connecticut), their analysis of data used over a 4 year period for nursing home ratings in CMS' "Nursing Home Compare" system reveals key concerns. From the abstract:
We argue that the rating system is prone to inflation in self-reported measures, which leads to biased and misleading ratings. We use the CMS rating data over 2009–2013 and the corresponding financial data reported by Office of Statewide Health Planning and Development and patients’ complaints data reported by California Department of Public Health for 1219 nursing homes in California to empirically examine the key factors affecting the star rating of a nursing home.
We find a significant association between the changes in a nursing home's star rating and its profits, which points to a financial incentive for nursing homes to improve the ratings. We then demonstrate that this association does not always lead to legitimate efforts to improve service quality, but instead can induce inflation in self-reporting in the rating procedure. A prediction model is then developed to evaluate the extensiveness of inflation among the suspect population based on which 6% to 8.5% of the nursing homes are identified as likely inflators. We also summarize the key characteristics of likely inflators, which can be useful for future audit.
For more, see the full article, Winning at All Costs: Analysis of Inflation in Nursing Homes' Rating System, published November 20, 2017 in the journal Production and Operations Management.
Wednesday, December 6, 2017
There have been a spate of articles of late regarding various issues surrounding nursing homes, and to some extent ALFs, arising from the hurricanes that hit Florida, Puerto Rico and Texas this past summer. For example, Health News Florida reported that ALFs in Florida were facing a whopping $280 million for generators, Assisted Living Facilities Face $280 Million Tab For Generators resulted from a cost estimate from Florida's Department of Elder Affairs, which "published a summary of the estimated regulatory costs on Wednesday after it received a three-page letter from the Joint Administrative Procedures Committee flagging potential problems with the proposed rule, initially published on Nov. 14. The estimated costs were published in the Florida Administrative Register." The Florida Governor had issued an emergency rule shortly after Irma and the agency has now released a permanent rule to replace the emergency rule. It looks as though there are over 4,500 ALFs in Florida, so it's understandable how the cost of compliance would reach that estimate.
Meanwhile, Health News Florida was also reporting that the cost of generators for nursing homes is less than that estimate for ALFs but still high-$186 million high. Nursing Home Generator Costs Estimated At $186 Million explains this figure, again an estimate, again resulted from the new rule with the total based on "estimates on information provided from the nursing home industry, which said the costs for a generator at a 120-bed facility would be $315,200. Using those figures, [the Florida Agency] estimated the average cost per bed at $2,626.66."
Then there's the story about the plan to recycle Rx meds from Pro Publica that Health News Florida picked up, More States Hatch Plans to Recycle Drugs Being Wasted in Nursing Homes explains "how the nursing home industry dispenses medication a month at a time, but then is forced to destroy it after patients pass away, stop using it or move out. Some send the drugs to massive regional incinerators or flush them down the toilet, creating environmental concerns." Although there are a few programs to "recycle", most of the time leftover drugs are destroyed, some by flushing and others by incinerating. Although in many states, donations of drugs is possible, the story explains "[m]any states ... don’t have programs that get the drugs safely from nursing homes to those who need them."
Monday, December 4, 2017
Last year CMS released some changes to the Nursing Home regs, some of which went into effect last, year and others that recently went into effect this year in late November. Consumer Voice has released a summary of significant provisions that just went into effect. Federal Requirements of Participation for Nursing Homes: Summary of Key Changes in the Final Rule Issued September 2016 Phase 2, a 9 page document, highlights both new rules and edited ones. For example, a new rule involves baseline care plans which have to be done within 2 days of admission. One of the modified rules going into effect involves nursing services: requiring not only enough staff, but with needed specific skills and competencies. There's also a new rule regarding nutrition staffing and competencies.
The last phase of implementation doesn't occur until Nov. 28, 2019. For a pdf of the summary of key changes, click here.
Thursday, November 30, 2017
Recently I wrote about a high profile suit filed by AARP attorneys on behalf of residents at a California skilled care (nursing home) facility to challenge evictions.
I've also been hearing about more attempts to evict residents from Continuing Care Communities, also known as CCRCs or Life Plan Communities. For example, in late 2016 a lawsuit was filed in San Diego County, California alleging a senior's improper eviction from a high-end CCRC. The woman reportedly paid a $249k entrance fee, plus additional monthly fees for 15 years. When she reached the age of 93, however, the CCRC allegedly evicted her for reasons unconnected to payment. The resident's diagnosis of dementia was an issue. Following negotiations, according to counsel for the resident, Kelly Knapp, the case reportedly settled recently on confidential terms.
Is there a trend? Are more CCRC evictions happening, and are they more often connected to a resident's diagnosis of dementia and/or the facility's response to an increased need for behavioral supervision? If the answer is "yes," then there is a tension here, between client expectations and marketing by providers. Such tension is unlikely to be good news for either side.
CCRCs are often viewed by residents as offering a guarantee of life-time care. Even if any promises are conditional, families would not usually expect that care-needs associated with aging would be a ground for eviction.
The resident and family expectations can be influenced by pricing structures that involve substantial up-front fees (often either nonrefundable or only partially refundable), plus monthly fees that may be higher than cost-of-living alone might explain. Marketing materials -- indeed the whole ambiance of CCRCs -- typically emphasize a "one stop shopping" approach to an ultimate form of senior living.
In one instance I reviewed recently, the materials used for incoming residents explained the pricing with a point system. The prospective resident was told that in addition to the $100+k entrance fee, an additional daily fee could increase as both "medical and non-medical" needs increased. A resident who "requires continual and full assistance of others . . . is automatically Level C" and billed at a higher rate. The graded components included factors such a need for assistance with "cognition, mood, or behavior," or "wandering." All of that indicates dementia care is part of the "continuing" plan.
CCRCs, on the other hand, may turn to their contract language as grounds for an eviction. Contracts may have language that attempts to give the facility sole authority to make decisions about a resident's "level" of care. Sometimes that authority is tied to decisions about "transfers" from independent living to assisted living or to skilled care units within the same CCRC, as the facility sees care needs increasing. Even same-community transfer decisions can sometimes be hard for families. Complete evictions can be even harder to accept, especially if it means a married couple will be separated by blocks or even miles, rather than hallways in the same complex.
November 30, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Sunday, November 26, 2017
Actions by Attorneys and Their Investigators Trigger Sanctions Affecting the Underlying False Claims Act Suit
A decision earlier this year in a qui tam suit, alleging the submission of false claims to Medicare for the off-label prescription of a drug for dementia, seems especially interesting in light of recent high profile allegations involving Harvey Weinstein's alleged use of private investigators to befriend his victims in order gather information.
In the qui tam suit the drug in question was Namenda, described in the opinion as "approved by the FDA for treatment of moderate to severe Alzheimer's disease," but allegedly also promoted illegally by the companies for prescription to individuals with milder stages of dementia. In Leysock v. Forest Laboratories, et al, the United States District Court in Massachusetts dismissed the complaint as a sanction for conduct by the plaintiff's attorneys and the investigator hired by those attorneys:
The present dispute arises out of the conduct of counsel for relator, the Milberg law firm, in investigating the case. As set forth below, Milberg attorneys engaged in an elaborate scheme of deceptive conduct in order to obtain information from physicians about their prescribing practices, and in some instances about their patients. In essence, Milberg retained a physician and medical researcher, Dr. Mark Godec, to conduct a survey of physicians concerning their prescription of Namenda to Medicare patients. In order to obtain the cooperation of the physicians, Dr. Godec falsely represented that he was conducting a medical research study. Dr. Godec, at Milberg's direction, conducted two internet-based surveys as well as follow-up telephone interviews. Among other things, the physicians were induced to provide patient medical charts and other confidential medical information to Dr. Godec. Information derived from those surveys was then set out in the Second Amended Complaint in this action, and was relied on by the Court in denying defendant's motion to dismiss in 2014.
Defendants have now moved to dismiss the Second Amended Complaint as a sanction for alleged violations of attorney ethical rules. For the reasons stated below, that motion will be granted.
November 26, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)
Tuesday, November 21, 2017
Dr. Muriel Gillick, a Professor of Population Medicine at Harvard Medical School and the director of the Program in Aging at Harvard Pilgrim Health Care Institute had a new book. Old & Sick in American: The Journey Through the Health Care System sounds like it hits the nail on the head, demonstrating topics that a wise consumer will need to recognize in order to navigate biases and weaknesses in the system.
For a timely Q & A interview with the author, see How Older Patients Can Dodge Pitfalls Entrenched in Health Care System, published by California Healthline.
Sunday, November 12, 2017
Kaiser Health News wrote about those in their 50s and early 60s who face retirement but are not yet eligible for Medicare. Rising Health Insurance Costs Frighten Some Early Retirees focuses on the ACA's exchanges which are expected to increase costs a lot at least partially due to the "administration’s decision to stop payments to insurers to cover the discounts they are required to give to some low-income customers to cover out-of-pocket costs." The article also mentions the constant focus on repeal and replace by Congress that creates a lot of uncertainty. It's not just about costs, but the variations amongst the states can also create unease. The increased costs may lead some to forego health insurance completely, especially, it is speculated, by those who get no subsidies.
There are already signs of that, according to an analysis for this article by the Commonwealth Fund. The percentage of 50- to 64-year-olds who were uninsured ticked up from 8 percent in 2015 to 10 percent in the first half of 2017. In 2013, the figure was 14 percent.
Indeed, the ACA has been a boon to people in this age group whether they get a subsidy or not. It barred insurers from excluding people with preexisting conditions — which occur more commonly in older people. And the law restricted insurers from charging 55- to 64-year-olds more than three times that of younger people, instead of five times more, as was common.
The law also provided much better access to health insurance for early retirees and the self-employed — reducing so-called “job lock” and offering coverage amid a precipitous decline in employer-sponsored retiree coverage that began in the late 1990s.
Wednesday, November 1, 2017
This week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel." As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.
But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions. I'm sorry I did not have time to stay longer after the program, before heading to the airport. They were very clear and interesting speakers, with healthy senses of humor.
The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.
Whew! Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing? The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.
On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents. The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos. Copyright rules and the growing efforts to ensure payments are the reasons.
The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why. For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.
It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and Health Care Communities" in 2016. Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.
November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 31, 2017
We are in the thick of Medicare enrollment, so the story from Kaiser Health News explaining the differences between original Medicare and Medicare Advantage is quite timely. Medicare Vs. Medicare Advantage: How To Choose reports that the Part C offerings are pretty stable for 2018 and in fact there are available the highest number plans for purchase all over the US. The article explains some of the foundational concepts for Part C plans:
Medicare Advantage plans must provide the same benefits offered through traditional Medicare (services from hospitals, physicians, home health care agencies, laboratories, medical equipment companies and rehabilitation facilities, among others). Nearly 90 percent of plans also supply drug coverage.
Pros from CMS:
Little paperwork. (Plan members don’t have to submit claims, in most cases.)... An emphasis on preventive care...Extra benefits, such as vision care, dental care and hearing exams, that aren’t offered under traditional Medicare....An all-in-one approach to coverage. (Notably, members typically don’t have to purchase supplemental Medigap coverage or a standalone drug plan.)....Cost controls, including a cap on out-of-pocket costs for physician and hospital services (Medicare Part A and B benefits).
Cons from CMS:
Access is limited to hospitals and doctors within plan networks. (Traditional Medicare allows seniors to go to whichever doctor or hospital they want. ...Techniques to manage medical care that can erect barriers to accessing care (for example, getting prior approval from a primary care doctor before seeing a specialist).... Financial incentives to limit services. (Medicare Advantage plans receive a set per-member-per-month fee from the government and risk losing money if medical expenses exceed payments.) ... Limits on care members can get when traveling. (Generally, only emergency care and urgent care is covered.) ... The potential for higher costs for specific services in some circumstances. (Some plans charge more than traditional Medicare for a short hospital stay, home health care or medical equipment such as oxygen, for instance.) ... Lack of flexibility. Once someone enrolls in Medicare Advantage, they’re locked in for the year. There are two exceptions: a special disenrollment period from Jan. 1 to Feb. 14 (anyone who leaves during this time must go back to traditional Medicare) and a chance to make changes during open enrollment (shifting to a different plan or going back to traditional Medicare are options at this point).
The article also discusses the implications for Medigap policies if the beneficiary switches enrollment to original Medicare and the premium costs for Part C plans. The article recommends a close look at the drug costs under the plan. The article concludes with a discussion of selecting doctors that participate in the beneficiary's plan.
Helpful article! Assign it to your students.
Tuesday, October 24, 2017
We have blogged several times about the issues for Medicare beneficiaries who are not admitted to the hospital but instead are on observation status. The Center for Medicare Advocacy (CMA) has released a toolkit for those Medicare beneficiaries. Here's some information from CMA about their toolkit along with helpful links.
The information in our Toolkit can help beneficiaries, families, advocates and providers understand and respond to an “outpatient” Observation Status designation. The Toolkit contains our Observation Status Infographic; Frequently Asked Questions; A Fact Sheet, Summary & Stories from our partners in the Observation Coalition; A Sample Notice (the MOON); our Recorded Webinar (slides in the printable .pdf); Beneficiary/Advocate Q&A; and our Self-Help Packet.
The Toolkit can be downloaded in its entirety or browsed online at http://www.medicareadvocacy.org/medicare-hospital-outpatient-observation-status-toolkit.
There's a great infographic explaining the observation status dilemma. You could post it or hand it out to clients. Get permission from CMA to post it on your website in the client info section! Check out the FAQ as well as the self-help packet. In addition to accessing the toolkit online, you can download the toolkit as a pdf, by clicking here.
Full disclosure-I'm a member of the CMA board.
Monday, October 23, 2017
My thanks to my colleague Dermot Groome for pointing me to the CNN investigative series on "The Little Red Pill Being Pushed on the Elderly." The prescription drug in questions is Nuedexta, approved to treat PseudoBulbar Affect or PBA, a "disorder marked by sudden and uncontrollable laughing or crying." (Perhaps you have seen commercials for treatment of PBA with actor Danny Glover effectively portraying the disorder).
According to the CNN report:
Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. Total sales of Nuedexta reached almost $300 million that year.
Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less. And state regulators have found doctors inappropriately diagnosing nursing home residents with PBA to justify using Nuedexta to treat patients whose confusion, agitation and unruly behavior make them difficult to manage."There has to be a diagnosis for every drug prescribed, and that diagnosis has to be real ... it cannot be simply made up by a doctor," said Kathryn Locatell, a geriatric physician who helps the California Department of Justice investigate cases of elder abuse in nursing homes. "There is little to no medical literature to support the drug's use in nursing home residents (with dementia) -- the population apparently being targeted."
Friday, October 20, 2017
CMS recently released a report of the ratings of Medicare Advantage plans, according to an article in Modern Healthcare. Medicare Advantage star ratings show insurers' performance hasn't improved explains that according to the data recently released by CMS:
the number of Medicare Advantage plans that performed well in the CMS' star ratings program dropped slightly from last year. At the same time, the amount of insurers that receive certain ratings hasn't changed significantly in recent years. The CMS said about 44% of the 384 active Medicare Advantage contracts in 2018 that also have Part D prescription drug coverage earned 4 stars or higher for their overall rating. This is a drop from 2017 when about 49% of the 363 active Medicare Advantage plans earned 4 stars or higher. Although the overall number of 4-star or high plans dropped slightly, more beneficiaries will be covered by the highest performing Medicare Advantage plans in 2018, the CMS said. Nearly 73% of Medicare Advantage enrollees are in contracts with 4 or more stars, compared to about 69% of enrollees in such plans last year.
The story notes that the rankings tend to be pretty static and that those with 5 stars in the past seem to maintain that ranking. "Another consistent trend is that higher performers tend to be companies that have the most experience in Medicare Advantage. Contracts with more than 10 years in a Medicare Advantage program accounted for about 21% of 4.5-star ratings and 31% of 4-star and 3.5-star ratings." The article discusses the factors that go into the 5 star rating system and offers some added information about the performance of Part D plans. The CMS press release is available here.
Sunday, October 15, 2017
That's similar to the title of a news story on Kaiser Health News Social Security Giveth, Medical Costs Taketh Away, reporting on the amount of Social Security is spent by beneficiaries on out of pocket hospital costs. On Friday SSA announced its 2018 figures, including the COLA increase. However, Medicare's 2018 premium amounts haven't yet been announced, but speculation is that the premium raises will wipe out the COLA increase. The Washington Post reported Social Security checks to rise 2 percent in 2018, the biggest increase in years reports a 2% increase in Social Security for 2018 and noted that "[h]ealth care is their biggest expense, and it's one of the fastest rising costs in America. Medicare Part B premiums are expected to rise in 2018, eating up much of the Social Security increase for some seniors." Forbes reported similarly in its article, Gotcha! Social Security Benefits Rising 2% In 2018, But Most Retirees Won't See Extra Cash, "many recipients will find most or all of that increase eaten up by a jump in the Medicare Part B premiums deducted from their monthly Social Security checks...."
The Forbes article explains why beneficiaries won't really come out ahead with the COLA increase.
By law, normal Part B premiums are supposed to cover 25% of Medicare's costs for providing doctor and outpatient services. But about 70% of Social Security recipients have been protected in the past two years by a “hold harmless” provision which provides no increase in Medicare premiums can reduce a Social Security recipient's net monthly check below what it was in the previous year. (Recipients who are considered “high income” and those who don’t have their premiums deducted from Social Security aren’t protected by this hold harmless provision.) Since retirees got no Social Security increase in 2016 and a measly 0.3% hike in 2017, the 70% are now paying an average of $109 a month, instead of the $134 per month premium that would be needed to cover 25% of costs.
While Medicare Part B premiums for 2018 haven’t yet been announced, they’re expected to remain at around $134----meaning the 70% will see about $25 per person---or $50 per couple---of any Social Security benefits increase consumed by higher Medicare premiums.
With open enrollment starting, expect the 2018 premiums to be announced.
Sunday, October 8, 2017
Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary:
Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.
These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.
Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.
Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.
The issue brief offers 7 recommendations including requiring (1) emergency generators, (2) prior coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.
Thursday, October 5, 2017
CMS has announced the availability of Hospice Compare and it is now live! The website is searchable either by the name of the agency or by zip code. Not only does the website provide general information about hospice, the website provides a consumer checklist, information about Medicare's coverage of hospice care and other useful information. The site allows for comparisons of hospice agencies based on their quality of care. Check it out!
Sunday, October 1, 2017
Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017. Not a violent contact and apparently not one involving physical or mental injury. But clothing was removed and fluids were later documented. Now residents are being transferred and more than 70 employees will reportedly be laid off.
As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities. A criminal investigation found no grounds for prosecution. A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports. The actual closure action was made voluntarily by Genesis.
Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:
- Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"?
- How far must a LTC provider go to prevent intimate contact between residents?
- After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
- How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?
- Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?
October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, September 28, 2017
On Tuesday, September 26, 2017, at the same time that there was much sound and fury, but no vote, on the Graham-Cassidy Senate effort to repeal Obamacare, the U.S. Senate quietly approved on a voice vote Senate Bill 870, titled "Creating High-Quality Results and Outcomes Necessary to Improve Chronic Care Act of 2017"or "CHRONIC Care" for short.
The vote sends the bill on to the House for any next step of action. In press releases after the vote, sponsors welcomed Senate passage as a sign of bipartisan support for "strengthening and improving health outcomes for Medicare beneficiaries living with chronic conditions," noting:
“This bill marks an important step towards updating and strengthening Medicare’s guarantee of comprehensive health benefits for seniors,” said [Oregon's Senator Ron Wyden,] the ranking Democrat on the Senate Finance Committee. “Medicare policy cannot stand idly by while the needs of people in the program shift to managing multiple costly chronic diseases,” Wyden said. “This bill provides new options and tools for seniors and their doctors to coordinate care and makes it less burdensome to stay healthy.”
The bill that passed the Senate on Tuesday was co-sponsored by Senate Finance Committee Chairman Orrin Hatch (R-Utah), as well as Sens. Johnny Isakson (R-Ga.) and Mark Warner (D-Va.)
Initial review of the modestly ambitious bill shows that if passed in full by the House, the legislation would extend by 2 years the "Independence at Home Demonstration program," now in its 5th year, with funding otherwise set to run out at the end of September. Additional provisions address "telehealth" services and direct studies or accounting reports on Medicare Advantage plans.
The Independence at Home Demonstration program seems worthy of additional operation and tracking, as at least on paper it trends towards what most people seem to want, i.e., better health care access while still at home, rather than waiting for facility-based services. For more on preliminary outcomes from the Demonstration program, see "Corrected Performance Results" from Year 2, released in January 2017.
On the other hand, it is difficult to resist the irony that a great deal of work seemed to go into crafting the acronym, "CHRONIC," which also happens to be the street name for "very high-quality marijuana."
My special thanks to my newest Dickinson Law colleague, Professor Matthew Lawrence, who comes to us with fabulous experience in health care law, for helping identify this active piece of legislation.
Tuesday, September 26, 2017
Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident. The Long Term Care Community Coalition (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:
The overview explains that
The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.
The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.
The brief can be downloaded as a pdf here.
September 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases | Permalink | Comments (0)
Monday, September 25, 2017
Video: Elder Law Attorney Uses Her Experiences to Explain Why Graham-Cassidy Repeal of ACA Isn't Right Answer
In a 3-minute YouTube video, Texas Elder Law Attorney Jennifer Coulter explains how the Affordable Care Act has affected her clients -- and herself -- in a positive way. She makes a principled, compelling case for why "getting it right" on health care is far more important than political sound bites and rushed repeal measures.