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!
Sunday, November 23, 2014
From Kaiser Health News, this report of "confusion, frustration and resistence," associated with California's first six months of efforts to move 500,000 low-income seniors and disabled persons into managed care:
"'The scope and the pace are too large and too rapid for what is supposed to be a demonstration project,' said Dr. William Averill, executive board member of the Los Angeles County Medical Association, which filed a lawsuit to block the project. 'We are concerned that [the project] is ill-conceived, ill-designed and will jeopardize the health of many of the state’s most vulnerable population – the poor, the elderly and the disabled.'
There is a lot riding on the pilot — the largest of its kind in the nation. The patients involved are among the most expensive to treat – so-called 'dual eligibles,' who receive both Medicare, the health insurance program for the elderly and disabled, and Medicaid, which provides coverage for the poor. Over the three years of the demonstration project, California is focusing on 456,000 of the state’s 1.1 million dual eligibles.
State officials acknowledge some transition problems but say the project will provide consumers with more coordinated care that improves their health, reduces their costs and helps keep them in their homes. In addition, officials estimate the program could save the state more than $300 million in fiscal year 2014-2015."
For more, read "California's Managed Care Project for Poor Seniors Faces Backlash," by Anna Gorman.
Wednesday, November 19, 2014
Earlier this month, Yale Law School hosted a conference marking the 50th anniversary of the passage of Medicare and Medicaid. The program speakers were encouraged to examine the precedents set by these two major programs, against the backdrop of recent health care reform initiatives. Videos from sessions on "The Law of Medicare and Medicaid at 5o" are now available to the public, including segments on:
- Medicare, Then and Now
- Historical Context, Legislation & Administration
- Policy Making and Innovation
- Health Law Federalism, Especially After NFIB
- Looking Ahead
In addition, the presentation by keynote speaker Ezekiel Emanuel, Vice President of Global Initaitives and Chair, Medical Ethics and Health Policy at the University of Pennsylvania is available.
The video segments, while interesting, may be a little difficult to sit through, as they are not edited, and some of the speakers are not using the microphones. Fortunately, Professor Allison Hoffman from UCLA School of Law and others have written a wonderful series of pieces, stemming from the Yale program sesssions, and the articles are posted on Health Affairs Blog.
Friday, November 14, 2014
The November issue of AARP's Bulletin carries a special Medicare cover story, "Inside the Medicare Strike Force" by Rick Schmitt. The article details recent successes by a Justice Department unit formed in 2007:
"The strike force has grown from a single outpost in Miami in 200 to nine cities, with the support of 40 of the 100 attorneys in the fraud section of the Justice Department. . . . Just this September, some 280 prosecutors and agents from around the country attended a Justice Department workshop in Washington, D.C., to learn the finer points of investigating and prosecuting Medicare cases. Increasingly, the crackdown has the look of a major narcotics operation, complete with electronic surveillance and frequent use of informants and cooperating witnesses. Defendants' assets are now routinely seized before trial. Sentences are being measured in decades; even some older beneficiaries are being prosecuted. Agents are backed by forensic accountaints, health care professionals and data acquisition analysts who have a pipeline to Medicare contractors' billing information."
A side bar to the main feature focuses on Peggy Sposato, describing her as a "fraudster's worst enemy," through use of her data analysis skills to create systematic review of billing records. Her methods successfully trace unlawful Medicare payments. Her career as a fraud buster "began in the mid-1990s after a career as a geriatric nurse."
Tuesday, November 11, 2014
The October 2014 issue of the American Bar Association's Health Law Section publication, The Health Lawyer, has an interesting lead essay, one that I believe would be useful both for practitioners and law students to read. D. Gary Reed, Associate General Counsel for Humana Inc., argues that there are two distinctly different versions of the Medicare Advantage program of health coverage, the version he believes was intended by Congress and the version "found in pleadings, briefs and court decisions."
Attorney Reed starts with a concise statutory overview of coverage under Medicare Part C, leading to introduction of his central thesis: "Litigants and courts too often depend on prior case law for their understanding of the Medicare statute, rather than on the statute itself."
Reed writes clearly and offers helpful citations. He points out that the Medicare statute is, at best, intimidating to the "uninitiated" and the confusion is made worse by inconsistent use of citations to provisions of the legislative Act, rather than to the United States Code.
He offers an "ABCs of Medicare" followed by a more detailed examination of the subparts of Part C, and describes what it means to "opt out." He outlines his approach to how the Medicare Advantage program is intended to function, using examples to show how he believes courts have gotten it wrong. He argues there is "no such thing as a Medicare Advantage insurance policy." The misconception that there is a "policy," he says, "lulls general practitioners and provider collection counsel into suing for breach of the nonexistent Medicare Advantage insurance policy, instead of pursing the exclusive Medicare appeals process."
Reed contends that "[t]ime and money spent by Medicare Advantage organizations defending litigation driven by these misconceptions diverts resources from caring for aged and disabled Medicare beneficiaries." He says "a contributing factor may be the dearth of authoritative materials -- text books, law review articles, or the like -- that explain and contextualize the program in readily understandable terms."
After reading the article, I ask whether a fair implication arises from the apparently significant numbers of claims being made, even if incorrectly and in the wrong forum. Doesn't that suggest there could be real problems with Medicare Advantage? Reed writes that it is important to understand, and to use available statistics to demonstrate, that "the Medicare appeals process exists and is actually available to Medicare Advantage enrollees." But is Medicare Advantage meeting the real needs of health care service users in this program?
Wednesday, November 5, 2014
I recently read an HHS Inspector General report about Medicare paying for HIV drugs ... for the dead....The OIG report, Medicare Paid for HIV Drugs for Deceased Beneficiaries, released on Halloween (shades of trick or treat), is available here as a pdf.
OIG report # OEI-02-11-00172 focuses on HIV drugs and the prompt for the investigation was "ongoing concerns about Medicare paying for drugs and services after a beneficiary has died."
The report found that under the existing policy (which allows this to occur), Medicare continued to pay for HIV drugs for 150 decedents. Medicare cuts off payments "for drugs with dates of service more than 32 days after death [because] CMS's practices allow payment for drugs that do not meet Medicare Part D coverage requirements. Most of these drugs were dispensed by retail pharmacies."
Why just look at HIV drugs because isn't it likely that this continued payment could be occurring beyond just this group of drugs? CMS agrees that "these "findings have implications for all drugs because Medicare processes PDE records for all drugs the same way. Considering the enormous number of Part D drugs, a change in practice would affect all Part D drugs and could result in significant cost savings for the program and for taxpayers."
The OIG report recommends a change in practice to "prevent inappropriate payments for drugs for deceased beneficiaries and lead to cost savings for the program and for taxpayers. CMS concurred with [the OIG] recommendation."
Monday, October 27, 2014
Has anyone else noticed an uptick in eye-catching articles from the Washington Post? Maybe it it just that they are writing about things I'm interested in, but I also notice that I'm getting more recommendations from readers, based on Post pieces. Nice to see this resurgence in a traditional news source.
Along that line, the Washington Post has been running a series on the "Business of Dying," looking at hospice and finding lots of areas for concern. Sunday's piece focuses on the inconsistencies among hospice providers, with gaps in services that may be hard for families to respond to, especially in the midst of end-of-life trauma.
The Washington Post has now published on line an interactive "Consumer Guide to Hospice," co- written by Dan Keating and Shelly Tan. You can search by state or by provider -- and it is free!
Monday, October 20, 2014
Earlier this month, CMS announced that it was going to update and improve the Nursing Home Compare site, which should result in more accurate information available for consumers. According to the October 6, 2014 press release, "the expansion and strengthening of the agency’s widely-used Five Star Quality Rating System for Nursing Homes will improve consumer information about individual nursing homes’ quality."
Starting in January, "CMS and states will implement focused survey inspections nationwide for a sample of nursing homes to enable better verification of both the staffing and quality measure information that is part of the Five-Star Quality Rating System." CMS is also adding to the quality measures used. Also CMS will be doing some "focused survey inspections" for verification purposes of the information that is being submitted.
According to the Center for Medicare Advocacy October 16, 2014 weekly alert, a new law, "[t]he Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act of 2014) ... supports one of the key changes –providing funding to implement a provision of the Affordable Care Act (ACA) that requires nursing home staffing data reported on Nursing Home Compare to be electronically-submitted and "based on payroll and other verifiable and auditable data."
Check it out!
Monday, August 25, 2014
In a feature article on Medicare's "star ratings," the New York Times reports that some nursing homes are able to "game the system" through self-reports of data that fail to include complaints filed with state agencies. The article uses examples to show that even five star ratings, the highest available, can be obtained despite pending state investigations into serious allegations of mishandled care. The ratings by Medicare were intended to provide an objective measure for consumers and in recent years a growing proportion of nursing homes have obtained higher ratings.
"But some nursing homes are not truly improving. Instead, they have learned how to game the rating system, according to ]New York Times] interviews with current and former nursing home employees, lawyers and patient advocacy groups. Nationally, the proportion of homes with above-average ratings has risen steadily. In 2009, when the program began, 37 percent of them received four- or five-star ratings. By 2013, nearly half did.
The Times analysis shows that even nursing homes with a history of poor care rate highly in the areas that rely on self-reported data. Of more than 50 nursing homes on a federal watch list for quality, nearly two-thirds hold four- or five-star ratings for their staff levels and quality statistics. The same homes do not fare as well on the sole criterion that is based on an independent review. More than 95 percent of the homes on the watch list received one or two stars for the health inspection, which is conducted by state workers."
For more, see "Medicare Star Ratings Allow Nursing Homes to Game the System" by Kate Thomas.
Tuesday, August 19, 2014
We have blogged previously on hospice, and a new article adds to the body of literature on the subject. The Journal of Palliative Medicine published an article by Dr. Joan Teno, Dr. Michael Plotzke, Dr. Pedro Gozalo, and Dr. Vincent Mor, A National Study of Live Discharges from Hospice. The study recognizes that there are various reasons that a person may leave hospice care, such as "patients decide to resume curative care, their condition improves, or hospices may inappropriately use live discharge to avoid costly hospitalizations." The abstract offers the following conclusion-about 20% of "hospice patients are discharged alive with variation by geographic regions and hospice programs. Not-for-profit hospices and older hospices have lower rates of live discharge." Why is it important to study this? As the introduction to article points out, there are instances when a provider may improperly discharge a patient and the timing can be telling: improper admission to hospice at the beginning or an effort to avoid costs. Building on existing research, this study finds similar results in some areas, but makes some important conclusions that deserve additional study
Provide and state variation raises concern that live discharges are not driven by patient preference but by provider and market behavior. Hospice programs that exceed their aggregate reimbursement caps (a marker for hospices with an excessive average hospice length of stay) had nearly double the rate of live discharges compared to hospice programs that did not exceed their aggregate cap.
The authors suggest there are certain red flags that should alert regulators that more careful scrutiny is needed for a specific hospice.
A hospice program with a high rate of live discharges deserves regulatory scrutiny especially when they have a pattern of hospitalization and hospice readmission. With increased hospice competition or potential future changes in hospice payment policies, hospices may change their enrollment and pattern of live discharges to maximize their profitability. Potentially, live hospice discharges represent a vulnerability of the Medicare Hospice Benefit. Hospices with high rate of these patterns of live discharges should trigger further regulatory review that examine whether their hospice enrollees were eligible, adequately informed about the Medicare hospice benefit before electing hospice, and whether the hospice program did a good enough job of advance care planning to avoid hospitalizations.
Sunday, August 17, 2014
The Washington Post ran a fascinating article on a particular Medicare scam. A Medicare Scam That Just Kept Rolling was published August 16, 2014 and focuses on power wheelchairs. The article offers a detailed look at how this particular scam worked.
The wheelchair scam was designed to exploit blind spots in Medicare, which often pays insurance claims without checking them first. Criminals disguised themselves as medical-supply companies. They ginned up bogus bills, saying they’d provided expensive wheelchairs to Medicare patients — who, in reality, didn’t need wheelchairs at all. Then the scammers asked Medicare to pay them back, so they could pocket the huge markup that the government paid on each chair.
This eye-opening article points out that the depth and breadth of the scam remains largely unknown, but is on its way out.
But, while it lasted, the scam illuminated a critical failure point in the federal bureaucracy: Medicare’s weak defenses against fraud. The government knew how the wheelchair scheme worked in 1998. But it wasn’t until 15 years later that officials finally did enough to significantly curb the practice.
The article is accompanied by a video that shows in "four easy steps" how to perpetrate a Medicare scam as well as a sidebar with slides showing how the power wheelchair scam works. Variations of the scam are more than 40 years old and have morphed with the times.
If you aren't shaking your head in wonder now, consider why these scams can happen:
[F]or Medicare officials at headquarters, seeing the problem and stopping it were two different things.
That’s because Medicare is an enormous system, doing one of the most difficult jobs in the federal government. It receives about 4.9 million claims per day, each of them reflecting the nuances of a particular patient’s condition and particular doctor’s treatment decisions.
By law, Medicare must pay most of those claims within 30 days. In that short window, it is supposed to filter out the frauds, finding bills where the diagnosis or the prescription seem bogus.
The way the system copes is with a procedure called “pay and chase.” Only a small fraction of claims 3 percent or less — are reviewed by a live person before they are paid. The rest are reviewed only after the money is spent. If at all.
The whole thing is set up as a kind of honor system, built at the heart of a system so rich that it made it easy for people to be dishonorable.
The article talks about comparisons--the amount of money spent on power wheelchairs as compared to the total amount of dollars spent in the Medicare universe and although the amount spent on wheelchairs is a lot, it's a small amount in that universe. The article mentions the steps the government has taken to end the motorized wheelchair scam such as competitive bidding and rent-to-own. So if the wheelchair scam is on the decline, what's the next one? According to the article, orthotics and prosthetics. Stay tuned...
Monday, August 11, 2014
The Washington Post recently completed a disturbing three-part series on hospice. To analyze the quality of services rendered to terminal patients, the reporters reviewed "Medicare billing records for more than 2,500 outfits, obtained an internal Medicare tally of nursing care in patients near death and reviewed complaint records at hundreds of hospices." The Post tracks data pointing to staff shortages, lack of coordination in care, failure to provide sustained assistance during critical periods, and the potential for Medicare to incentivize such gaps through perverse funding priorities.
Wednesday, July 30, 2014
John Washlick, a shareholder with Buchanan Ingersoll & Rooney in Philadelphia and Princeton, provides a concise and useful overview of laws that form the basis for claims of "fraud" or "abuse" associated with Medicare and Medicaid in the most recent issue of Pennsylvania Bar Quarterly (April 2014, available also on Westlaw). The abstract to his article, "Health Care Fraud and Abuse," provides:
"Medicare and Medicaid combined comprise the largest payer of health care services in the world, and account for over 20 percent of all U.S. government spending. As a result, efforts to combat fraud and abuse in these programs have become a congressional and administrative priority. This article will address four significant federal fraud and abuse laws: (i) Anti-Kickback Statute, (ii) "Stark" Anti-Referral Law, (iii) Civil Monetary Provisions, and (iv) False Claims Act (Civil and Criminal). The Patient Protection and Affordable Care Act, more commonly referred to as the "Affordable Care Act" significantly strengthened each of these laws, including increased funding to step up enforcement actions. There are other federal and state statutes that are aimed at curbing fraud and abuse and they should not be ignored when reviewing a financial arrangement between or among potential referral sources."
A useful guide, especially when reading about multi-million dollar settlements in whistleblower cases growing out of nursing home care, home care, hospice care, and pharmaceutical sales, such as the Omnicare settlement reported on the Elder Law Prof Blog today.