Tuesday, April 21, 2015
If you haven't had a chance yet to read the new law, you should take a look. Medicare Access and CHIP Reauthorization Act of 2015 was signed by the President on April 16, 2015. Among some of the provisions to note is section 211 which provides for a permanent extension of the QI program (which had expired effective April 1 and had been reauthorized a year at a time), a change to Medigap plans (section 401) and a change to the income-related premium increases for higher income beneficiaries for Part B and D (section 402). These last 2 are part of the offsets in the bill. For the Medigap plans, effective in 2020, those newly eligible for Medicare won't be able to buy a gap plan to cover the Part B deductible. The changes to the income-related premium adjustments take effect a little earlier (2018) and those beneficiaries affected by the change will be paying more for their Medicare coverage.
Monday, April 20, 2015
Whenever I look at national programs on "hot topics" in healthcare law, I'm seriously impressed by the number of offerings on regulatory compliance issues connected to Medicare and Medicaid payments. There are abundant reasons for this emphasis. Each year the Department of Justice touts its statistics on "recoveries" for False Claim Act cases. For the fiscal year ending September 30, 2014, the DOJ enthusiastically reported its "first annual recovery to exceed $5 billion" in a single year. No wonder health care law is a hot field. And remember, much of the money is connected to senior care in all of its guises.
A recent $1.3 million settlement on a Medicare-related False Claims Act case might seem like small potatoes at first glance. But, I was struck by the fact that it was a DOJ settlement with a (non-profit) Continuing Care Retirement Community. I don't usually think of CCRCs as being a major target of False Claim Act allegations. Details are a bit sparse, but the size of the payment seemed pretty hefty when you consider that Asbury Health Center near Pittsburgh, PA actually "self-disclosed" its violation of Medicare regulations. The DOJ press release on April 15 explains:
"For post-hospital skilled nursing care, Medicare regulations require that a facility obtain a physician certification at the time of admission or as soon thereafter as reasonable and practical. The facility must also obtain a physician recertification within 14 days of admission and every 30 days thereafter. Based on information provided by Asbury, the United States alleged that it had civil claims against Asbury resulting from Medicare payments for post-hospital skilled nursing services that were not supported by physician certifications and recertifications."
Thursday, April 16, 2015
From the New York Times on April 14, an article from the business section, As Nursing Homes Chase Lucrative Patients, Quality of Care is Said to Lag.
Promises of “decadent” hot baths on demand, putting greens and gurgling waterfalls to calm the mind: These luxurious touches rarely conjure images of a stay in a nursing home.
But in a cutthroat race for Medicare dollars, nursing homes are turning to amenities like those to lure patients who are leaving a hospital and need short-term rehabilitation after an injury or illness, rather than long-term care at the end of life.
Even as nursing homes are busily investing in luxury living quarters, however, the quality of care is strikingly uneven. And it is clear that many of the homes are not up to the challenge of providing the intensive medical care that rehabilitation requires. Many are often short on nurses and aides and do not have doctors on staff.
Some colorful quotes here ("patients are leaving the hospital half-cooked"), but a lot of this well-written article nonetheless seems like old news to me (okay, perhaps that's because of my chosen research focus), with reporting on trends influenced by operating margins on the "nonprofit" side of care, and "return on investment" for shareholders on the for-profit side. Perhaps "intensity" of the pressures is the theme here?
Tip of the hat to George Washington University Law student Sarah Elizabeth Gelfand ('16) and GW Professor Naomi Cahn for making sure we saw this article!
Saturday, April 11, 2015
One of the first assignments I give to law students in my Elder Law course is to visit a "nursing home" and to see if they can get a copy of the admission agreement or contract. (Most of the facilities in my area cooperate with these student visitors.) The lesson here, however, is revealed when the students bring the documents back to the classroom for discussion. We discover that the majority of the contracts are not for admission to "skilled nursing facilities."
More frequently the facilities in question are licensed as "continuing care retirement communities" or CCRCs, which are big in Pennsylvania, or personal care homes (PCs or PCHs), or assisted living (AL) communities, each of which have different state regulations applying to their operations. These are not "nursing homes," or at least, they are not "skilled nursing facilities." Further, in Pennsylvania, increasingly there may be no label at all -- at least not a label that the public is familiar with -- and that is often by design as the facility or community may be attempting to avoid a "higher" level of requirements.
The usual explanation is that the choice in label is not driven by concerns over "quality" of care, but by costs of having to meet some non "care" related regulation, such as AL state requirements for room size or physical accommodations. The facility makes the case that it can meet the real needs of its clientele without being tied to "higher care" and therefore more "costly" models for senior housing. Fair enough. Caveat emptor. If you are the customer, make sure you do your homework, ask questions, comparative shop, and avoid assumptions based on pretty pictures in marketing brochures. And try to do all of this before an emergency that accelerates the need for a move.
But, there can be significant differences triggered by a label (or lack thereof) that are not readily apparent to the public. A recent Policy Issue Brief published by Justice In Aging (formerly the National Senior Law Center) uses examples from California to shine a spotlight on subtle issues in labeling, as well as on the importance of regulations that are responsive and up-to-date. Merely changing an "identity" or label should not be the basis for failing to comply with minimum standards relevant to the clients' needs.
In How California's Assisted Living System Falls Short in Addressing Residents' Health Care Needs, Justice in Aging (JIA, to make our circle of acronyms almost complete), provides a sample job notice for a California facility and asks "can you spot the legal violations in this Assisted Living job announcement?" The notice, appears to be hiring for a "certified med aide," despite the fact that there is no such thing in California, and more importantly, if the facility calling itself "Assisted Living" is actually a RCFE (residential care facility for the elderly), the California regulations do not permit staff to administer medications. Outside of Medicare/Medicaid standards for skilled nursing facilities -- the "nursing homes" of the past -- there are no national standards for labeling of "assisted living" or the many alternatives.
JIA's issue brief dated April 7, 2015 is part of a series that explores how California's system functions and points to ways it could be modified to help assure residents their expectations and needs will be satisfied.
The lessons in the JIA brief -- with a few tweaks to respond to any given state's set of acronyms -- seem equally relevant in all states.
Friday, April 10, 2015
ElderLawGuy Jeff Marshall alerted us to this week's ruling by the Third Circuit Court of Appeals, affirming the conviction of Eugene Goldman, M.D. for several counts of taking "kickbacks" for referral of Medicare and Medicaid patients for hospice services. Dr. Goldman's sentence of 51 months, followed by three years of supervised release during which he is barred from practicing medicine, was affirmed. The facts, as set forth in the opinion, are interesting:
"Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice ('HCH'). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.
Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.
In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganetsky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation."
Tuesday, April 7, 2015
St. Louis University's Journal of Health Law and Policy has recently released a theme issue, focused on "Health Care Reform, Transition and Transformation in Long-Term Care." A great line-up of articles and authors, including:
- Home & Community-Based Long-Term Services and Supports: Health Reform's Most Enduring Legacy? by Marshall B. Kapp
- Care Coordination for Dually Eligible Beneficiaries, by Katie M. Dean and David C. Grabowski
- The Challenge of Financing Long-Term Care, by Judy Feder
- Rationalizing Home and Community-Based Services Under Medicaid, by Laura D. Hermer
- The Broken Promise of OBRA '87: The Failure to Validate Survey Protocol, by Malcolm J. Harkins III
In addition, there are two relevant Notes written by SLU students:
- Short-Stay, Under Observation. or Inpatient Admission? How CMS' Two Midnight Rule Creates More Confusion and Concern, by Rachel A. Polzin
- Disclosure for Closure? Why the Self-Referral Disclosure Protecol Process Paired with the 60-Day Overpayment Rule Creates More Headaches than Solutions, by Peter J. Eggers
April 7, 2015 in Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Monday, April 6, 2015
According to an informational bulletin from CMS on April 1, the traditional medical assistance program (TMA) and the QI program ended. The QI program had been extended until March 31, 2015, so both programs ended effective April 1, 2015. As a result of the end of the QI program and "[i]n the absence of an extension, states will not be required to discontinue their payment of Part B premiums for QI beneficiaries, but these payments will no longer be eligible for federal reimbursement from CMS unless and until the program is reauthorized" The informational bulletin is available here.
Sunday, March 1, 2015
This week, the Supreme Court will hear oral arguments on the latest challenge to the ACA, in King v. Burwell. The New York Times offers historical perspective about an earlier journey to enact federal legislation that mandated the nation's first broad health care coverage, the Medicare program:
Lyndon B. Johnson was often derided for being egocentric, but when it came time to sign his landmark bill creating Medicare, 50 years ago this July, he graciously insisted on sharing the credit with the 81-year-old Harry Truman. At almost the last moment, Johnson decided to change the location from Washington to Truman’s presidential library in Independence, Mo.
During the ceremony, Johnson noted that in 1945, the newly installed President Truman had called for national health insurance, planting “the seeds of compassion and duty which have today flowered into care for the sick, and serenity for the fearful.” Johnson then presented his host with the nation’s first Medicare card. Deeply moved, Truman later wrote in a letter to Johnson that the ceremony was “the highlight of my post-White House days.”
For more details, read "LBJ and Truman: The Bond That Helped Forge Medicare."
For more on this week's Supreme Court challenge, from the Washington Post, see "Five Myths About King v. Burwell."
Tuesday, February 24, 2015
The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.
The hosts describe the webinar as follows:
This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance.
Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.
Here is the link for REGISTRATION. Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families.
Thursday, February 19, 2015
As the long-predicted aging tsunami hits, are there enough doctors to meet the need? Not in Montana, as demonstrated by a two-part story from NBC News:
"There is no part of life in McCone County, Montana, where the community's age has not begun to show. Farmers have gone gray. There were some dozen funerals last winter. Each year makes more widows. Nearly 25 percent of McCone County's 1,700 residents are already over 60, a bellwether for changes that will soon roll across Montana. State projections show a quarter of Montanans will be seniors by 2030, twenty years before the same demographic shift hits the nation as a whole.
Montana policymakers have watched that shift coming toward them, knowing it brings more older, potentially sicker patients to a largely rural medical system in which providers and specialists are already scarce. Seniors here often travel an hour or more for 'emergency' care, and nursing home beds are dwindling, particularly in the sparsest areas.
In the face of these changes, Charlie Rehbein, head of the Montana Office on Aging, asks, 'How do we provide services to them?'"
Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Monday, February 9, 2015
Recently Elder Law Attorney Bob Anderson from Marquette, Michigan, spoke to law students at Dickinson Law on the theme of "planning" and his presentation stressed the importance of understanding long-term care insurance or, because our world loves acronyms, "LTCI."
Bob used his thirty years of experience in counseling families to outline key points, and to explain factors that have impacted the LTCI industry. I asked the students to summarize what they found to be most interesting and important. Their "takeaway" highlights included:
- LTCI is an important consideration, part of the same evaluation for insuring against "unacceptable" losses, that should take place in deciding whether to insure against home fires or early death, recognizing that such events are "unlikely" to happen, but can happen to a significant percentage of the population;
- LTCI has a "cost of waiting," both in terms of the potential to become "uninsurable" because of a disqualifying medical condition arising, and because of the cost increase in first time premiums as you get closer to the age of potential need; and
- The cost of LTCI has several important variables, which lawyers can help families understand when advising about planning options, including the term of coverage (e.g., 1, 3 or 5 years), the "elimination" period, the interaction with Medicare's 100 day maximum for post-acute care, and the need to consider inflation protection for the daily benefit.
Bob also talked about "hybrid" insurance products, combining life insurance with an LTCI option. I think it is safe to say that regardless of their goals after graduation, all of the law students came away with an appreciation for the need to understand all available options, including LTCI, in planning or advising for post-retirement needs.
One of our students, who is thinking about general practice, said that he can see clients asking questions about LTCI. Bob was excellent at reminding all of us that effective elder law and estate planning attorneys address more than just what happens after death.
Bob, whose diverse interests include cross-country ski racing and hockey, also provided a bit of surprise during his visit when he began speaking Russian -- and, I think, Ukrainian -- with our Russian and Ukrainian Law expert, Bill Butler.
We especially appreciate Pennsylvania elder law attorney Amos Goodall and the National Elder Law Foundation (NELF) for their roles in making this interactive program possible; the recording will be available to practitioners in the future through NELF's educational arm. Amos also addressed our students, adding important Pennsylvania specifics to the discussion.
In a timely coincidence, AARP has a newly published Money Column, on "Should I Buy Long-Term Care Insurance?"
Wednesday, February 4, 2015
Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care. In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:
"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.
Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.
Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”
The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure. The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:
"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.
One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.
Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.
But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."
The full articles are interesting -- we will link to any future parts of this bold series.
February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 3, 2015
This Blog has followed the complicated recent history of bankrupt Lemington Home for the Aged, in Pittsburgh, with posts here and here. New America Media, a national association of over 3000 ethnic media organizations, has begun an important, multi-part series examining the "impoverished history of race" in long-term care for persons of color. The Lemington Home becomes a case study. The series is titled The Death of a Black Nursing Home.
"[W]hat happened to Lemington is not uncommon. Researchers at Brown University found that more than 600 other nursing homes in African American, Hispanic and low-income neighborhoods also went bankrupt during this period.
Their study examined the closings of more than 1,700 independent nursing homes between 1999-2009 and found that those located in largely ethnic and low-income communities were more likely to have been closed, mostly because of financial difficulties.
Specifically, nursing homes in the zip codes with the highest percentage of blacks and Latinos were more than one-third more likely to be closed, and the risk of closure in zip codes with the highest level of poverty was more than double that of those in zip codes with the lowest poverty rate."
Observing that "Medicaid homes can't compete" successfully, the article examines reimbursement rates under Medicare and Medicaid and the disproportionate effect of underfunding on minority communities.
"The principal authors of the study, Vincent Mor and Zhanlian Feng, both of Brown at the time (Feng is now at the Research Triangle Institute), noted 'closures were more likely to occur among facilities in states providing lower Medicaid nursing home reimbursement rates.' That left these homes without the resources they needed to compete successfully in an industry experiencing an oversupply of beds and intensified competition....
While Medicaid reimbursement rates vary by state, they are always below Medicare’s reimbursement levels or the fees charged to people who pay for their own care. The demise of Lemington and other nursing homes in minority and low-income neighborhoods is a direct result of this flawed payment scheme. However, large for-profit nursing home chains, some of which are owned by private equity companies and real estate investment trusts, can maximize profits by using expensive and aggressive marketing practices to cherry pick the wealthier residents in a given area while reducing the number of their own Medicaid clients.
Medicaid’s payment structure also has impacted the quality of care in nursing homes with predominantly minority residents."
We will link to the next parts of the series as they become available.
Tuesday, January 27, 2015
Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits. They write:
"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA. Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws. Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law. California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions. As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."
The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"
Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.
For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010.
This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court. On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.
Monday, January 26, 2015
National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:
"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country. And it is a LOT easier to say and remember!
Our new name will be Justice in Aging. Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.org. We will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same. As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI."
We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation.
Wednesday, January 21, 2015
Catching up with three new elder law-related articles from SSRN that look very interesting:
"The Universality of Medicaid at Fifty" by University of Kentucky Law Professor Nicole Huberfeld, forthcoming in the Yale Journal of Health Policy Law & Ethics:
"This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The essay then assesses and evaluates Medicaid’s new universality across four dimensions - governance, administration, equity, and eligibility. Each reveals a facet of universality that underscores this new principle’s importance for health care into the future."
"This paper analyzes nursing home failures in light of the federal regulatory regime that oversees them. Section II provides a framework for the discussion of nursing homes by describing the choices seniors have for their living arrangements. In order to establish context for the current social and legal space inhabited by nursing homes, Section III traces the historical development of the modern nursing homes, with a particular focus on the landmark laws of the 1960s that paved the way for late-twentieth century proliferation of nursing homes. With this background in mind, Section IV explores the federal regulatory regime that governs nursing homes, and Section V details the bodies and mechanisms that enforce federal rules and regulations. Section VI provides evidence and statistics regarding the prevalence of abuse and neglect in nursing homes and argues that these data evidence a troubled regulatory system. Section VII examines the Patient Protection and Affordable Care Act, which has been heralded as the most significant legislation affecting the healthcare industry in decades, and concludes that the law does not contain provisions that will serve to reduce elder abuse and neglect in any significant way. Section VIII offers recommendations to improve nursing home care in light of the foundation provided by PPACA. Section IX discusses potential blowback that these and other solutions may present and urges reformers to proceed carefully and thoughtfully before enacting any proposed reform."
"This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act ('SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account."
Wednesday, December 31, 2014
On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute. The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs. The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.
When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before. However, the Ohio case was a new spin on that troublesome topic. According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission. One document was an admission agreement that the son signed, pledging:
“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”
The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”
The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.
The Ohio court leaves me with another question, not directly addressed in the decision. Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks? Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted? Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.
At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference.
For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary. Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident. Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.
With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!) Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice.
In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course. The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond.
Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.
Thursday, December 18, 2014
The Centers for Medicare and Medicaid Services (CMS) recently published a proposed rule that would make equal treatment for same-sex marriages (recognized under state law) a condition for all providers or suppliers seeking federal funding. CMS also released interim guidance for long-term care surveyors, as part of the agency's implementation of the Supreme Court's decision in U.S. v. Windsor,
Comments to the prosed rule are due by February 10, 2015. The National Senior Citizens Law Center provides additional information regarding its advocacy on this important topic, and on the proposed regulations and policies on its Center website, here.
Monday, December 1, 2014
March 20, 2015
8:30 am – 5:00 pm
Kaiser Family Foundation
Barbara Jordan Conference Center
1330 G Street, NW
Washington, DC 20005
Space is limited!
The Center for Medicare Advocacy’s Second Annual National Voices of Medicare Summit will connect leading experts and advocates to discuss best practices, challenges and successes in efforts to improve health care, long-term services and supports, and quality of life for older people and people with disabilities. Interspersed with the voices and real stories of Medicare beneficiaries and families, this one-day event will provide valuable information, insights, and inspiration.
Join us as we celebrate 50 Years of Medicare and work together to protect its future!