Tuesday, December 3, 2013
USA Today continues reporting on criminal misuse of resident funds held in accounts at nursing homes, pointing to the lack of clear laws requiring faculities to conduct audits or other oversight systems for resident accounts:
"Federal law provides the regulatory framework for the nation's 16,000 nursing homes, which have to meet an array of standards to participate in Medicare and Medicaid. Federal rules do not require audits for resident trust fund accounts, and most states take the same approach.
The U.S. Centers for Medicare and Medicaid Services, the federal agency responsible for nursing home regulation, is considering whether additional oversight is needed to address theft and mismanagement of residents' funds.
'We are aware of this situation and are reviewing the (inspection) procedures used to detect these kinds of problems,' agency spokesman Aaron Albright said when asked about USA TODAY's findings. 'CMS takes safeguarding nursing home patients very seriously.'"
You may have noticed that there have been a lot of news items since the passage of the ACA, and even more since we are getting closer to the beginning of the year (and I'm not referencing the political differences about the ACA). One of the positive side-effects of the ramp up of the ACA to January 1, 2014 is that some who didn't know they were eligible for Medicaid now do.
Chris Kardish, for Governing, wrote an article Even in States That Aren't Expanding, Thousands More Qualify for Medicaid. Although this was somewhat anticipated, the article notes that
Reports delivered to state legislatures referred to this population as the “woodwork effect”—people who were eligible under the existing program but didn't know it until they sought insurance from an online marketplace known as an exchange. With the recent release of first-month enrollment data from state and federal exchanges, they’re getting a glimpse of the effect, but experts caution that it’s too early to make any conclusions about its budgetary impact this fiscal year
The article reports that among the exchanges (state, federal and DC), 400,000 were either Medicaid- or CHIP-eligible. However, the number on its face can be misinterpreted, as the article goes on to explain. This number (from HHS) makes no differentiation "between people who were already eligible and those who are part of the expansion population, but about 100,000 of them came from non-expansion states, indicating that upward of a quarter or more of potential new sign-ups were already eligible."
Although estimates as to how many beneficiaries will be added to Medicaid is more susceptible to calculation, the "woodwork" numbers are more problematic. The article goes on to discuss that some states have indicated the numbers to be greater than expected and others, less.
The "woodwork effect" numbers cannot be ignored, however. As the executive director of the National Association of State Budget Officers explained in the article "the health of people coming to Medicaid offices through the woodwork effect matters a lot more than their overall numbers. With a program like Medicaid, which is prone to unpredictability and cost overruns, state officials already expect the unexpected and have done so in anticipation of the health law..."
For some individuals living in states not expanding Medicaid and ho didn't know about their eligibility, this can be pretty darn good news. Cloud....silver lining, anyone?
Monday, December 2, 2013
The American Bar Association is offering Cyber Monday sales with 40% off of books and more. The ABA Commission on Law and Aging offers great publications, including the Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. It's still Monday (at least for a few more hours) so it's a great time to add to your Elder Law library!
I received an email from AARP's Public Policy Institute about the December 6, 2013 briefing on Medicare Observation Status. The briefing, Am I in the Hospital or Not? Why Hospitals are 'Observing’–Not Admitting–Patients, is jointly sponsored by AARP's Public Policy Institute and the Alliance for Health Care Reform. The registration page offers the following description:
Hospitals are feeling increased pressure from Medicare to classify patients the “right” way or risk losing reimbursements. In turn, patients face higher bills for services they receive in the hospital, and also the possibility of not qualifying for Medicare-covered nursing home care after their hospital stay.
One reason for the increase in "observation status" is to better hospitals' chances of getting payment from Medicare. (Medicare can refuse to pay hospitals when it deems a hospital inpatient stay as unnecessary, and hospitals say there has been a lot of uncertainty in the process.) In addition, starting in 2012, the Patient Protection and Affordable Care Act imposed penalties for hospitals with high rates of readmission. Hospitals can avoid the penalty if the patient was not officially admitted during his first visit.
How prevalent is observation status and how rapidly is it increasing? What challenges are hospitals facing to comply with state law and federal rules regarding hospital admissions? What administrative solutions are being tried by Medicare? What is the "two-midnight" rule and how does it work? What does it all mean for out-of-pocket costs to beneficiaries and reimbursements for hospitals?
The briefing runs from 12:15-2:00 p.m. in the Dirksen Senate Office Building, Room G50. To register, click here.
3L Nerissa Irizarry reports on her experiences at this year's NALI conference in Washington, DC (Part 2 of a series)....
The 2013 National Academy of Elder Law Attorneys conference held a session entitled “Making Your Office and Beyond Accessible to Your Clients With Intentional ‘Elder Friendly’ Design.” The session’s presenters were Professor Rebecca Morgan, Professor Roberta Flowers, both currently at Stetson University College of Law, and John E. Wittman from Geier Brown Renfrow Architects, LLC. The discussion that ensued was tremendously practical. The presenters sought to demonstrate, with assistance from the audience, the unique needs presented when creating an office that is welcoming to older clients. In addition to the distinctive interactive nature of this session, the presenters highlighted the intersectionality that is inherent in an elder law practice by including an architect in the discussion. Throughout the conversation, presenters and audience members commented on the ways in which design wishes and legal concerns coalesced, not always harmoniously, in the office planning process. For example, municipal regulations can pose a problem for the considerate elder law attorney who wants to install signage that is not consistent with local requirements. Mr. Wittman, NAELA’s featured architect, paid special attention to aesthetically appeasing as well as functional features of a welcoming elder law office. For instance, there was much attention paid to colors that contrasted, but did not clash, as well as light that was illuminative and diffused. The idea was to have an appealing office that was not harsh to the eyes of an older or (dis)abled client. The presenters enhanced the quality of their presentation by including pictures of elder law offices from around the country. These visuals invoked lots of conversation and comments from the audience. Overall, the interactive, practical aspects of this session blended fun into an educational, professional conference.
The overall atmosphere of the 2013 NAELA conference can be summed up in two words: inviting fun! As a first time attendee, who ventured to the conference knowing absolutely no one, I expected my social interactions to be at least slightly awkward. I was pleasantly surprised to have had exactly the opposite experience. Nearly everyone I interacted with was not only welcoming, but inviting. I was asked about my interests, passion, and future goals in the field of elder law. I spoke with attorneys who encouraged my induction into the field, as well as offered their moral support for any stumbles along the way. The interactions with elder law attorneys stood out as the outstanding aspect of the conference. In fact, one attendee (Ruth Ratzlaff) handed me her card and told me to call her if I ever needed a cheerleader. I will be sure to remember her when I am spending my summer tediously studying for admission to the California Bar.
The sessions were digestible, and that characteristic is particularly important for new and soon-to- be attorneys like myself. I especially enjoyed the interactive atmosphere within the sessions. As attendees, we did not sit still for too long before we were asked to participate in the conversation. The presentations truly felt like conversations. From the venue to the environment, the 2013 NAELA conference created an ambiance that was engaging and convivial to attendees.
--Nerissa Irizarray, J.D. expected, William Mitchell College of Law, May 2014.
At the heart of comparative research is the opportunity to rethink your own system. I was reminded of this point last week when meeting Claire Keatinge, the Commissioner for Older People in Northern Ireland (COPNI). Commissioner Keatinge is -- in a word -- dynamic, and it is impossible not to be impressed with her dedication to meeting the needs of older persons in her country. She is a leader, both actually and symbolically, for a hard-working team tackling a number of issues in ageing policy.
It is clear to me that "independence" is at the core of the role for the COPNI. What do I mean by independence? The COPNI is funded with public dollars, but the job includes making an independent evaluation of the needs and interests of the demographic, and then reporting and advocating for appropriate response by the government or other sectors. By comparison, I wonder whether state officers or offices charged with policy and laws in the U.S.are more likely to be serving a governmental agenda, and trying to sell that agenda to voters. This strikes me as a potentially important, if subtle, difference in systems.
A small example of the importance of independence: One of the COPNI's several goals is to identify and improve "uptake" of benefits available to older persons in the country. In Northern Ireland, and elsewhere in the U.K., there are official statistics on the dollars (whoops, I mean pounds) left on the table by individuals who fail to seek available public benefits or services. In N.I., there is a known gap. By comparison, I would be surprised to learn that we keep similar statistics on either the state or federal level in the U.S., much less have a policy of trying to reduce any gap.
Claire Keatinge also stressed that an individual assessment of need for health care, social care and security, should be exactly that, and not simply an assessment of what services are available. Helping individuals or their family members access services in the public, private and voluntary sectors is part of the COPNI plan of action, but, it strikes me that the emphasis on evidence-based policies may result in development of new services or better funding for existing programs.
When I was at the International Elder Law Conference with a focus on Veterans Law in Honolulu, the World Study Group met the day before the conference started. There were several interesting presentations by academics on their latest research projects. One presentation lead to an interesting discussion of whether there is a U.S. elder law model, and what elder law means both within the U.S. and in other countries. It is an interesting thought—is elder law so unique that it is very country-specific, and not just because of substantive law or are there enough characteristics and commonalities (beyond the person’s age) so that elder law really is a practice area that knows no borders?
I like to use the cookie cutter analogy when trying to explain why things should not always look the same. Here’s the analogy-when making holiday cookies using a cookie cutter, the idea is uniformity-that the cookies in a certain shape all look the same. Here, perhaps elder law is not a cookie cutter practice area. So although many countries may have attorneys who practice elder law, what is elder law in the U.S. may not be the same as in Canada, or Japan, or Australia, for example. Is it the laws, culture and solutions that make it country-specific, or is it something else?
What do you think?
Sunday, December 1, 2013
There is so much information available about the rollout of the ACA, it's always a challenge to read everything. I rely heavily on the Kaiser Family Foundation (KFF) to keep up-to-date on developments. A recent email update from Kaiser announced to two reports on Medicaid and the ACA.
The first is Getting into Gear for 2014: Shifting New Medicaid Eligibility and Enrollment Policies into Drive. The executive summary of this report notes that in order "[t]o provide greater insight into the status of implementation, this report provides an overview of key state Medicaid eligibility and enrollment policies slated to go into effect based on data released by the Centers for Medicare and Medicaid Services (CMS)." The report includes discussions on states' decisions to expand Medicaid effective 1/1/2014; the enrollment process (included an integrated, online process); and new steps to encourage enrollment and retention. The full report can be accessed as a pdf here.
The second, an issue brief, is titled Fast Track to Coverage: Facilitating Enrollment of Eligible People into the Medicaid Expansion. The introduction explains that fast tracking in this context means:
To help states launch the expansion and efficiently enroll eligible individuals, CMS has offered states a series of facilitated enrollment options. These options include strategies, referred to as “fast track enrollment” in this issue brief, that allow states to enroll eligible individuals into coverage using data already available from their Supplemental Nutrition Assistance programs (SNAP) and/or their Medicaid or Children’s Health Insurance Program (CHIP) programs for children. These strategies complement the array of other pathways currently in place to connect Medicaid-eligible individuals to coverage, which include applying directly through state Medicaid agencies or through the new Marketplaces established by the ACA.
The issue brief discusses the options available, the experiences of 4 states that are "fast tracking," their effectiveness and take-aways. The issue brief is available as a pdf here.
The Kaiser site also offers some interesting features that allows you to look at how the states are implementing (or not) Medicaid expansion, an interactive page that allows you to "zoom in" to see the impact on localities, and an "infographic" on elders and long term care. Take a look at all these nifty offerings here.
Received from Lindy Wilmott, Director, Health Law Research Centre and Faculty of Law, Queensland University of Technology
The Queensland University of Technology Health Law Research Centre, Dalhousie Health Law Institute and Tsinghua Health Law Research Centre are pleased to invite you to the International Conference on End of Life: Law, Ethics, Policy and Practice 2014 (ICEL 2014). This interdisciplinary conference will be hosted by the Queensland University of Technology Health Law Research Centre in Brisbane, Queensland, Australia from 13-15 August 2014.
More information about ICEL 2014 is available here: http://icelconference2014.com/.
Confirmed Plenary Speakers
We are delighted to announce the following confirmed plenary speakers: ·
- Professor Peter Singer, Ira W. DeCamp Professor of Bioethics, University Center for Human Values, Princeton University and Laureate Professor, Centre for Applied Philosophy and Public Ethics, University of Melbourne (in a debate on euthanasia and assisted suicide)
- Professor Sheila McLean, Emeritus Professor of Law and Ethics in Medicine, Glasgow University (on terminal sedation)
- Professor Jocelyn Downie, Professor in the Faculties of Law and Medicine, Dalhousie Health Law Institute, Dalhousie University (on withholding and withdrawal of potentially life-sustaining treatment)
- Assistant Professor Charles Camosy, Assistant Professor of Christian Ethics, Fordham University (in a debate on euthanasia and assisted suicide)
- Dr Peter Saul, Senior Intensive Care Specialist, John Hunter Hospital (on how we are dying)
Call for abstracts
The call for abstracts to present at ICEL 2014 is now open. This is an interdisciplinary conference and abstracts are encouraged from the disciplines of law, medicine, health, bioethics and other fields relevant to end of life decision-making and care. Abstracts on the conference’s four sub-themes are particularly welcome: 1. Withholding and withdrawal of potentially life-sustaining treatment (e.g. advance care planning, futile treatment) 2. Palliative care and terminal sedation 3. Euthanasia and assisted suicide 4. Determination of death and organ and tissue donation.
For general enquiries about ICEL 2014, please contact QUT Events at email@example.com or +61 7 3138 9358.
Friday, November 29, 2013
Via The Hill:
ObamaCare has saved seniors and people with disabilities nearly $9 billion in prescription drug costs, according to data touted Tuesday by the Obama administration.
According to the Centers for Medicaid and Medicare Services, 7.3 million people who reached the “doughnut hole” in their Medicare prescription drug coverage have saved $8.9 billion on their prescription drugs since the law was enacted in 2010. That’s an average savings of $1,209 per person.
The “doughnut hole” refers to the gap in prescription drug coverage in which seniors must shoulder the full costs. Coverage under Medicare Part D provides an initial coverage limit on insurance and catastrophic coverage once costs hit a certain threshold. In between, seniors must pay the full costs.
To close the hole, the government, under the new healthcare law, will cover more and more of the value of brand-name and generic drugs until 2020, when seniors will be responsible for 25 percent of the cost for each.
The CMS also said more people are increasingly being helped by the fix.
In the first 10 months of 2013, about 3.4 million people got help, compared to 2.8 million in all of 2012.
We've made a number of blog posts about aging prisoners in the US. It seems that other nations are grappling with this issues, as well. Via The Age:
In Hollywood prisons old crooks don't die, they get parole and live out their days in Mexico. In real life the world over, prisoners are growing old in prison and will in ever greater numbers die there, often after suffering from chronic physical and mental illnesses.
But the vast majority of prisons are not set up to deal with older people, and most conventional aged-care facilities are not equipped to deal with residents with a criminal history. Many inmates lose family and friendship networks when they're inside. What, then, is to be done for our older prisoners? And do we actually care?Advertisement
Older prisoners are defined as those aged from 50 because they tend to have the health profile of people in the general population who are 10 years older, according to a 2011 Australian Institute of Criminology report. In the decade to 2010, the number of older inmates in Australia rose by 84 per cent, to more than 3300. The greatest rise, at 140 per cent, occurred among those aged over 65.
Susan Baidawi is a research fellow at Monash University and author of two reports on Australia's ageing prisoners: the 2011 AIC report and a yet-to-be-released Strategic Framework for the Management of Australia's Ageing Prisoners.
Baidawi says the ageing of the population generally is a minor contributor to the rise; changes in sentencing laws, including mandatory minimums, have also had an impact. But she says there is a greater number of people being convicted of historical offences, particularly sexual offences in the case of men.
"Older prisoners tend to have been convicted of crimes that are more serious in terms of sex offences, homicide and drug-related offences. Those offences attract longer sentences."
Thursday, November 28, 2013
Generations is the journal for the American Society on Aging. The most recent volume is devoted to topics involving person-centered care. The volume on person-centered care for individuals with dementia is divided into four sections: Overview, Person-Centered Care for People in Different Stages of Dementia, Person-Centered Care for People with Dementia Who Live in Different Settings and Person-Centered Care for People with Dementia in Medical Care Settings and During Care Transitions. The volume contains 19 articles, many of which are available on the website. Check it out!
Devolution, the process in the United Kingdom by which Scotland, Wales and Northern Ireland are enacting domestic laws and policies separate from the laws of England, has opened important opportunities to consider the needs of older persons.
Over the Thanksgiving weekend, I'm in Northern Ireland, working with great colleagues at Queen's University Belfast, on two projects commissioned by the Commissioner of Older People Northern Ireland (COPNI). One team is working on elder abuse and the other project focuses on social care, with each team employing comparative analysis from the U.S., Canada, Ireland, India and other nations in framing proposals for future laws or policies to be recommended for adoption in Northern Ireland.
Via the Minnesota Department of Human Resources:
that Minnesotans with disabilities have the right to live, work, and enjoy life in the most integrated setting is available online after being submitted to the court for final approval. The plan charts a course that will change the way state government provides supports and services for people protected by the Americans with Disabilities Act of 1990. The Olmstead Plan (PDF), which is named after a 1999 U.S. Supreme Court decision that enumerated the rights of people with disabilities, is now posted online. After months of discussion at public meetings, testimony from people with disabilities and their families and many others, the Olmstead Sub-Cabinet has issued the draft plan.
I say: after almost fifteen years, isn't it about time?
Wednesday, November 27, 2013
There is much to be grateful for on Thanksgiving, including family and friends. I completely agree with Becky's wonderful words of appreciation when she expressed "thanks giving" for caregivers. My thanks include my heroic mother (heading a caregiving team at age 88!), amazing sister and a whole team of talented additional folks.
Let me suggest an additional focus for thanks giving this season: our long-serving colleagues in the law, whether they be senior faculty members, senior judges, or senior lawyers. Perhaps it is just a bit too easy for younger generations to overlook the fact that our paths have been blazed by others, including many who continue to serve, giving new meaning to "golden" years.
And in this spirit, I am grateful to one of my own colleagues, Louis Del Duca, who has served The Dickinson School of Law for more than 57 years. He has been, and continues to be, a vital part of the development of national and international commercial law. He is a role model for scholars to embrace and understand new theories and technologies, such as his work with on-line dispute resolution for consumer and business issues. His legal scholarship also recognizes the importance of multiple audiences. Professor Del Duca has written books and articles directed to students, consumers, academy-based scholars, practicing attorneys, and tribunals on local, state, national and international stages. With his wife, Frances, also an attorney, the Del Duca home in Carlisle has been the site of many a warm and friendly evening with interesting collections of friends from the neighborhood -- or who are visiting from around the world. Thank you, Lou and Frances.
I suspect most of our readers have colleagues equally deserving of appreciation and thanks during the Thanksgiving season. Best wishes to all on this special day.
I was reading the NYC Elder Abuse Center's recent Elder Justice Dispatch about the Jewish Association Serving the Aging (JASA) innovative program titled Legal, Social Work, Elder Abuse Program (LEAP). JASA works "to sustain and enrich the lives of the aging in the New York metropolitan area so that they can remain in the community with dignity and autonomy." JASA offers a lengthy menu of services for NY elders, including meal programs, advocacy, home care services and senior centers (23 to be exact).
LEAP provides both lawyers and social workers who have undergone training to represent those 60+ who have been victims of elder abuse. The services provided include restraining orders, support, safety planning, emergency housing, legal representation, legal advice and medical help.
Earlier this month I sent three of my students to NALI. NAELA members and others were welcoming, and the students learned so much there! I've asked the students to write some blog posts about their experiences, and will be posting these over the next few days. This one is by my RA Regan Bovee, who will graduate in December with a JD from William Mitchell and a Health Compliance certificate from Hamline.
My Experience at the NAELA National Aging and Law Institute
On November 7th-9th I had the incredible opportunity to attend the NAELA National Aging and Law Institute as a third-year law student. The conference began with a discussion on the budget and policy landscape and what can be expected in the next year. From there, I attended a whirlwind of sessions about everything from designing an elder friendly office to a funny and informative panel featuring staff from the Center for Medicare Advocacy playing “Wait, Wait Don’t Tell Me.”
Jonathon Blum, the Deputy Administrator of the Centers for Medicare and Medicaid Services and Director of the CMS Center for Medicare spoke about Medicare’s ‘observation status.’ Among other topics, he discussed accountable care organizations (ACOs), which are groups of health care providers accountable for quality and cost of healthcare for beneficiaries in traditional fee-for-service care. Service quality is tied to an ACO’s rating.
Mr. Blum said that prior to the implementation of the Affordable Care Act (ACA), fifteen percent of Medicare beneficiaries were in four or five star plans. It is now more difficult to meet the requirements of being labeled a four or five star plan, but CMS projects that by 2015 more than half of beneficiaries in private plans will be in a high ranking plan.
My highlight from the conference was the large amount of content that involved the ACA. Almost every session I attended mentioned the ACA in one way or another, whether it be transitioning from a healthcare exchange to Medicare or the impact the ACA is having on long term care services. The final session, given by David Lillesand, focused solely on the ACA and addressed many common complaints such as, “my insurance plan is skyrocketing” and “why do men have to have maternity coverage?”
Mr. Lillesand also discussed the impact the ACA will have on personal injury law, since a large percentage of personal injury claims often goes toward future medical costs associated with having preexisting conditions and no longer being able to find coverage. With preexisting conditions no longer affecting coverage, the amount awarded in personal injury suits may decrease drastically.
It was such a wonderful experience being surrounded by elder law experts and having the opportunity to listen to them speak about topics that are so relevant. I left the conference feeling very inspired and excited to enter the field of elder law.
--by Regan Bovee (JD expected December 2013, William MItchell College of Law)
The other night I was working away writing posts for this blog, when I happened to notice an email somehow caught in my junk mail filter. This email was from the "FBI" and contained excellent and exciting news (by now, I hope you realize my tongue is planted firmly in my cheek). This email informed me that I had won $800,000 in the UK National Lottery. This email was signed by "James Brien Comey FBI DIRECTOR" which caused me some consternation since James B. Comey is the Director of the FBI, as I confirmed by googling it, but I don't think it came from Director Comey since the email doesn’t use FBI or .gov in the address (just guessing).
Of course, I have a long history of luck from total strangers in other countries. In fact, I once won a Brazilian lottery .... twice...in the same day....even though I've never been to Brazil. I clearly have a highly trusted profile on the internet--or maybe my face is just one of those trustworthy ones, because it seems that I get a fair number of emails from folks in other countries who are just trying to do the right thing and keep their corrupt governments from profiting from the government's bad acts. And despite the fact I have not practiced law for almost 3 decades, I keep getting emails from folks who want to hire me to represent them to collect back child support, or outstanding loans for businesses or for some type of business deal.
I mentioned my good luck to a colleague. Turns out she was lucky as well, since she also won the UK National lottery and coincidentally the exact same amount as I did...on the same day. Wow. But now, I think I have her beat because a few days later I got FIVE emails, two wanting to hire me, one in another language (but I think I won something) and two informing me of my continued my good fortune. I won another lottery, this time in Asia (to the tune of $5 Million).
But wait, the last email had even more exciting news, from the "International Monetary Fund" no less (if you believe they use a Hotmail email account). I am either a victim of a scam, a contractor, a lottery winner or a beneficiary and am entitled to $8.5 MILLION. Not to appear greedy, but I've decided not to respond until I win at least One BILLION Dollars (with apologies to Mike Myers as Dr. Evil).
Needless to say, I was thrilled to see the Senate Committee on Aging's press release (we covered it in a post on November 14, 2013 ) about the hotline for consumer scams. We clearly need to be more proactive in protecting elders from scams. As the holidays approach, you can believe we will see even more scams. So since I didn't really win the UK Lottery, am not accepting outside legal work, or entitled to any of these wonderful windfalls, I better go prepare for my class.