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.
Monday, August 29, 2016
PACE programs can be a great thing for certain Medicare beneficiaries, but the popularity of PACE programs hasn't seemed to grow as much as one might think. The New York Times ran a story on August 20, 2016 about the for-profit model for PACE programs. Private Equity Pursues Profits in Keeping the Elderly at Home explains that "[u]ntil recently, only nonprofits were allowed to run programs like these. But a year ago, the government flipped the switch, opening the program to for-profit companies as well, ending one of the last remaining holdouts to commercialism in health care. The hope is that the profit motive will expand the services faster." Is there a significant demand for PACE programs with the Boomers doing their aging thing? Is a for-profit model the way to go to provide the type of services needed by PACE participants?
The article discusses these issues and presents both sides. Recall that "[t]he goal of the program, known as PACE, or the Program of All-Inclusive Care for the Elderly, is to help frail, older Americans live longer and more happily in their own homes, by providing comprehensive medical care and intensive social support. It also promises to save Medicare and Medicaid millions of dollars by keeping those people out of nursing homes."
The article also discusses the possible role of tech in providing care, but notes the importance of socialization. CMS had a pilot before approving the for-profit model and is going to keep an eye on things.
The for-profit centers were approved, to little fanfare, after the Department of Health and Human Services submitted the results of a pilot study to Congress in June 2015. The demonstration project, in Pennsylvania, showed no difference in quality of care and costs between nonprofit PACE providers and a for-profit allowed to operate there.
The Centers for Medicare and Medicaid Services has vowed to closely track the performance of all PACE operators by measuring emergency room use, falls and vaccination rates, among other metrics. The National PACE Association, a policy and lobbying group, is also considering peer-reviewed accreditation to help safeguard the program. Oversight is now largely left to state Medicaid agencies.
Monday, August 22, 2016
The New York Times on Sunday had an exceptionally well written and important article about the latest trend in senior care. For-profit companies are now allowed to participate in PACE, the Program of All-Inclusive Care for the Elderly, a Medicare- and Medicaid-approved program designed to permit innovation in care that doesn't require residence in high-priced settings such as traditional nursing homes. Sarah Varney writes:
Inside a senior center here [in Denver], nestled along a bustling commercial strip, Vivian Malveaux scans her bingo card for a wining number. Her 81-year-old eyes are warm, lively and occasionally set adrift by the dementia plundering her mind.
Dozens of elderly men and women -- some in wheelchairs, others whose hands tremble involuntarily -- gather excitedly around the game tables. After bingo, there is more entertainment and activities: Yahtzee, tile-painting, beading.
But this is no linoleum-floored community center reeking of bleach. Instead, it's one of eight vanguard centers owned by InnovAge, a company based in Denver with ambitious plans. With the support of private equity money, InnovAge aims to aggressively expand a little-known Medicare program that will pay to keep oldr and disabled Americans out of nursing homes.
The feature-length article details how "private equity firms, venture capitalizes and Silicon Valley entrepreneurs have jumped" onto the PACE niche. For more on this important development, read Private Equity's Stake in Keeping the Elderly at Home.
My thanks to Laurel Terry and Karen Miller for sharing this article with us.
Wednesday, August 17, 2016
Investment News ran a timely article about the various Medicare enrollment periods. The alphabet soup of Medicare enrollment periods explains the initial enrollment period and special enrollment periods. It also explains succinctly how employer group health plans and Medicare interface as far as the special enrollment period.
If you have coverage through your employer or your spouse's employer consider:
• The employer provided health plan needs to be with a group of 20 or more insurance eligible members. If the group is smaller than 20, Medicare Parts A and B must be primary and cover 80% of costs. The employer plan only covers 20%. In those cases, many folks are better served by leaving the employer plan and signing up for Medicare Part D and a supplemental plan.
• The employer coverage needs to be Medicare Part D creditable, meaning that the employer coverage includes a prescription drug benefit comparable to Medicare Part D. The employer or insurance plan can provide the Medicare creditable coverage notice. Get a copy of this letter every year when your employer coverage renews. That way no one is caught off guard down the road. If a plan has not been Medicare creditable, lifelong penalties of 12% per year are levied when the individual enrolls in Medicare Part D.
Once the person leaves a health plan and is entitled to Medicare, it is important to remember a few key factors:
• Sign up for Medicare as soon as possible. Medicare enrollment can begin three months before employer coverage ends.
• While there is an eight-month window to sign up for Medicare Parts A and B, there is no primary health coverage until Medicare enrollment is complete. Even COBRA coverage is secondary coverage to Medicare. That means Medicare Parts A and B cover 80% of costs, leaving COBRA to pay 20%. The result is that when Medicare-eligible individuals do not have Medicare Parts A or B they are left to pay 80% of their costs out-of-pocket.
• If someone misses the eight-month SEP window after leaving employment, they will have to wait an extended period to of time to enroll, have coverage gaps and pay lifelong penalties.
Wednesday, August 3, 2016
Pennsylvania attorney Douglas Roeder, who often served as a visiting attorney for my former Elder Protection Clinic, shared with us a detailed Penn Live news article on what the investigative team of writers term "avoidable deaths" in nursing homes and similar care settings. The article begins vividly, with an example from Doylestown in southeastern Pennsylvania:
Claudia Whittaker arrived to find her 92-year-old father still at the bottom of the nursing home's front steps. He was covered by a tarp and surrounded by police tape, but the sight of one of his slim ankles erased any hope it wasn't him. DeWitt Whittaker, a former World War II flight engineer, had dementia and was known to wander. As a result, his care plan required him to be belted into his wheelchair and watched at all times. Early on Sept. 16, 2015, Whittaker somehow got outside the Golden Living home in Doylestown and rolled down the steps to his death.
"It wasn't the steps that killed him. But the inattention of staff and their failure to keep him safe," his daughter said.
The article is especially critical of recent data coming from for-profit nursing homes in Pennsylvania, pointing to inadequate staffing as a key factor:
In general, according to PennLive's analysis, Pennsylvania's lowest-rated nursing homes are for-profit facilities. Half of the state's 371 for-profit homes have a one-star or two-star rating – twice the rate of its 299 non-profit nursing homes. The reason for that discrepancy, experts say, isn't complicated: Studies have found that for-profit nursing homes are more likely to cut corners on staffing to maximize profit.
Spokespeople from both the for-profit and nonprofit segments of the industry are quoted in the article and they push back against the investigators' conclusions.
I have to say from my own family experience that while adequate staffing in care settings is extraordinarily important, older residents, even with advanced dementia, often have very strong opinions about what they prefer. My father is in a no restraint dementia-care setting, with a small cottage ("greenhouse") concept and lots of programming and behavioral interventions employed in order to avoid even the mildest of restraints. It was a deliberate choice by the family and my dad walks a lot around the campus and has his favorite benches in sunny spots.
The trade-off for "no restraints" can be higher risk. Residents, including my father, are sometimes stunningly adept at escape from carefully designed "safety"plans, such as those necessary in the summer heat of Arizona. Family members often remain essential members of the care team. For example, this summer I plan my daily visits at the very hottest part of the day, in order to help try to lure my father, a late-in-life sunshine worshiper, back into the cool. I watch the staff members exhaust themselves intervening with other ambulatory and wheelchair residents who are constantly on the move.
None of this "care stuff" is easy, but certainly the Penn Live article paints a strong picture for why better staffing, better financial resources, and more reality-based plans are necessary. For more, read "Failing the Frail." Our thanks to Doug for sharing this good article.
August 3, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management | Permalink | Comments (0)
Tuesday, August 2, 2016
Health and Human Services (HHS) Office for Civil Rights issued guidance in late May, 2016 for long term care facilities. The guidance, Guidance & Resources for Long Term Care Facilities: Using the Minimum Data Set to Facilitate Opportunities to Live in the Most Integrated Setting " is on using the minimum data set (MDS) so "residents receive services in the most integrated setting appropriate to their needs."
There are 3 recommendation sections of the guidance (actually there are 4, but the 4th deals with further resources). Why did OCR issue this guidance?
OCR has found that many long term care facilities are misinterpreting the requirements of Section Q of the MDS. This misinterpretation can prevent residents from learning about opportunities to transition from the facility into the most integrated setting. We are therefore providing a series of recommendations for steps that facilities can take to ensure Section Q of the MDS is properly used to facilitate the state’s compliance with Section 504 and to avoid discrimination.
The recommendations include a discussion of the importance of knowing about local resources and community based services, ensuring compliance with applicable civil rights laws ("[b]ecause Section Q is designed to assist residents in returning to the community or another more integrated setting appropriate to their needs, proper administration of Section Q of the MDS can further a state’s compliance with civil rights laws.") and the importance of maintaining up-to-date policies and procedures, and training employees.
McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published a candid editorial about factors affecting health care fraud in the industry. He writes:
[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations.
Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.
Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.
For more, read "It's Time for 'The Talk' About Healthcare Fraud."
Thursday, July 28, 2016
Kaiser Family Foundation (KFF) published 10 Essential Facts About Medicare and Prescription Drug Spending on July 7, 2016. Here are some of the 10 facts, in no particular order.
- "Medicare accounts for a growing share of the nation’s prescription drug spending: 29% in 2014 compared to 18% in 2006, the first year of the Part D benefit."
- "Prescription drugs accounted for $97 billion in Medicare spending in 2014, nearly 16% of all Medicare spending that year."
- "Medicare Part D prescription drug spending – both total and per capita – is projected to grow more rapidly in the next decade than it did in the previous decade."
- "As a result of the Affordable Care Act (ACA), Medicare beneficiaries are now paying less than the full cost of their drugs when they reach the coverage gap (aka, the “doughnut hole”) and will pay only 25% by 2020 for both brand-name and generic drugs."
- "High and rising drug costs are a concern for the public, and many leading proposals to reduce costs for all patients – including Medicare beneficiaries – enjoy broad support."
To read all 10 facts and review the corresponding charts and explanations, click here.
Wednesday, July 27, 2016
If your answer is no, you don't know a doctor who specializes in geriatric medicine, then take heart, you aren't alone. One would think, with the sheer number of baby boomers aging away, that there would be a number of doctors specializing in geriatric medicine. Kaiser Health Network (KHN) and West Virginia Public Broadcasting ran a story on July 13, 2016 about the lack of geriatricians. Few Young Doctors Are Training To Care For U.S. Elderly reports that West Virginia is 3rd in the country with a sizeable elder population, but only has 36 geriatricians practicing in West Virginia. It's not just West Virginia, though, who needs more geriatricians. "The deficit of properly trained physicians is expected to get worse. By 2030, one in five Americans will be eligible for Medicare, the government health insurance for those 65 and older."
The lack of geriatricians is not due to the lack of training programs in the U.S. "The United States has 130 geriatric fellowship programs, with 383 positions. In 2016, only 192 of them were filled." Why is this, you ask? According to the story, one reason may be the cost of a medical education and "they think that they need to get into something without the fellowship year where they can start getting paid for their work." An audio of the story is also available here.
Georgetown University's American Criminal Law Review recently hosted a symposium on health care fraud and one of the articles to come out of that program is by University of Alabama Law School Adjunct Professor James F. Barger, Jr. His article uses the 2013 criminal case of U.S. v. Kolodesh, which resulted in a "guilty verdict on all thirty five counts," to examine "the general trend of Medicare Hospice fraud enforcement actions." The author reports:
The vast majority of False Claims Act hospice cases in which the United States has intervened have settled in favor of the United States without consideration by a jury, and every criminal hospice fraud prosecution by the United States to date has resulted in a guilty plea or a conviction by jury. Every such case—whether civil or criminal—was initiated by a whistleblower under the public-private partnership of the False Claims Act.
The FCA’s whistleblower provisions have been highly effective at detecting fraud and recovering misappropriated Medicare dollars, but deterrence and prevention remain unattained goals.
The calculated business decision to settle False Claims Act allegations has proven over time to have a neutral-to-positive effect on corporate profitability in the hospice sector. For-profit hospice giants such as SouthernCare and Odyssey, who have paid eight figure settlements, have rebounded quickly and actually gained position over their competitors.....
Nevertheless, while the whistleblower provisions of the False Claims Act have proven extremely effective at discovering hospice fraud and at recovering at least some of the lost Medicare funds, alone the statute has demonstrated very little deterrent effect. Outside of a legislative overhaul of the Medicare Hospice Benefit, the only effective deterrent scheme will be for enforcement officials to supplement their use of the civil False Claims Act with traditional criminal fraud statutes. For this to work, however, criminal penalties must be imposed not only on the relatively small-scale players, like Matthew Kolodesh and Home Care Hospice, but also on the mega hospice companies and their executives and owners.
For more, read "Life, Death and Medicare Fraud: The Corruption of Hospice and What the Private Public Partnership Under the Federal False Claims Act is Doing About It," published in the 2016 issue of the American Criminal Law Review.
Monday, July 25, 2016
The answer might surprise you. It turns out that the older the person, the less the person spends Kaiser Family Foundation reports in a recently released Medicare data note. Medicare Spending at the End of Life: A Snapshot of Beneficiaries Who Died in 2014 and the Cost of Their Care was published July 14, 2016.
Of the 2.6 million people who died in the U.S. in 2014, 2.1 million, or eight out of 10, were people on Medicare, making Medicare the largest insurer of medical care provided at the end of life. Spending on Medicare beneficiaries in their last year of life accounts for about 25% of total Medicare spending on beneficiaries age 65 or older. The fact that a disproportionate share of Medicare spending goes to beneficiaries at the end of life is not surprising given that many have serious illnesses or multiple chronic conditions and often use costly services, including inpatient hospitalizations, post-acute care, and hospice, in the year leading up to their death. (footnotes omitted)
The authors examine the data on a number of points, with explanations and corresponding charts. Among their findings
Our analysis shows that Medicare per capita spending for beneficiaries in traditional Medicare who died at some point in 2014 was substantially higher than for those who lived the entire year, as might be expected. It also shows that Medicare per capita spending among beneficiaries over age 65 who die in a given year declines steadily with age. Per capita spending for inpatient services is lower among decedents in their eighties, nineties, and older than for decedents in their late sixties and seventies, while spending is higher for hospice care among older decedents. These results suggest that providers, patients, and their families may be inclined to be more aggressive in treating younger seniors compared to older seniors, perhaps because there is a greater expectation for positive outcomes among those with a longer life expectancy, even those who are seriously ill.
In addition, we find that total spending on people who die in a given year accounts for a relatively small and declining share of traditional Medicare spending. This reduction is likely due to a combination of factors, including: growth in the number of traditional Medicare beneficiaries overall as the baby boom generation ages on to Medicare, which means a younger, healthier beneficiary population, on average; gains in life expectancy, which means beneficiaries are living longer and dying at older ages; lower average per capita spending on older decedents compared to younger decedents; slower growth in the rate of annual per capita spending for decedents than survivors, and a slight decline between 2000 and 2014 in the share of beneficiaries in traditional Medicare who died at some point in each year.
The report is also available as a pdf here.