Elder Law Prof Blog

New Issue Brief on Medicaid Estate Recovery

Medicaid Estate Claims: Perpetuating Poverty & Inequality for a Minimal Return was released last month by the California Advocates for Nursing Home Reform (CANHR), Justice in Aging, National Academy of Elder Law Attorneys (NAELA), National Health Law Program (NHeLP), and Western Center on Law & Poverty.

Federal law requires state Medicaid programs to seek repayment of specified Medicaid benefits, even if the state would prefer not to seek such recovery. The Medicaid program’s claim is enforced against the heirs of now deceased persons who relied on Medicaid, forcing the heirs in many cases to sell a family home that otherwise would have been passed down. The burden of estate claims falls disproportionately on economically oppressed families and communities of color, preventing families from building wealth through home ownership, which has been historically denied to communities of color through discriminatory public policy. The burden also falls inequitably on families due to medical unpredictability – for example, because their family member developed Alzheimer’s Disease, needing months or years of nursing home care or equivalent home and community-based services. This unpredictability is exacerbated by inequities in our health care system that particularly harm lower-income and older adults of color. All these factors contribute to estate claim collections being unfair and societally counterproductive. Congress should amend Federal law to eliminate Medicaid estate claims. Alternatively, the law should be amended so that states have the choice of whether to use Medicaid estate claims, as recommended in a recent report to Congress by the Medicaid and CHIP Payment and Access Commission (MACPAC). (Citations omitted)

The full brief is available here.

What Happens to Social Security Benefits If the Beneficiary Goes to Jail or Prison?

This semester at Dickinson Law, I've been teaching a comparative law module on Social Security Benefits.  We've been spending more time than usual examining issues associated with basic "retirement benefits" rather than the more complicated topics of Social Security Disability (SSD) and Supplement Security Income (SSI) benefits.  

A group of us ended the semester with an interesting hypothetical.  Imagine that a retired, older client has a DWI -- his second within some number of years -- involving property damage and, thankfully, no direct endangerment to anyone's life or safety.  Assume a damaged mailbox or telephone pole. The state law might treat that as a misdemeanor, but because it is a second offense, it could still mean substantial jail time.  The client is thinking about pleading guilty, even if the sentence is 60 to 90 days.  The older client might be thinking "the faster I get this over, the faster I can get home and headed back in the right direction with my life."

Do lawyers advise such clients of the potential impact of incarceration, whether in a jail or prison, on his or her right to receive  basic Social Security benefits?  This was a new topic for me and of course that sent me scurrying for information.  Here's what I've read so far:

• The Social Security Administration has a December 2019 brochure, entitled "What Prisoners Need to Know."  
• Federal statutory law currently provides, at 42 U.S.C. Section 402(x)(1)(A), that "no monthly benefits shall be paid" to any individual who is "confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense" for 30 continuous days or more.  Does this mean the trigger for loss of benefits is 30+ days of confinement for any crime, even a misdemeanor? While a related regulation, at 20 CFR Section 404.468, provides that no monthly benefits shall be paid if the confinement is for a "conviction of a felony," (my emphasis added) it may be that regulation's language reflects pre-1999 statutory law.  See e.g., amendments to Section 402(x) set forth in  P.L. 106-170 (Dec. 17, 1999), 113 Stat. 1860, an act with the ominous name of "Ticket to Work and Work Incentives Improvement Act." 
• Cases explain that since 1983, the statutory mandate to suspend payments applies to basic retirement benefits, as well as SSD and SSI, and can also trigger a demand for refunds of any SS program funds "overpaid" during confinement, potentially reducing any future benefits the individual would otherwise receive once out of  jail. See e.g., Zipkin v. Heckler, 790 F.2d 16 (2d Cir. 1986). 
• Attempts to challenge the application of Section 402(x) by arguing the law violates substantive due process, equal protection or is unconstitutional as a bill of attainder or ex post facto law have not met with success.  See e.g., Butler v. Apfel 114 F.3d 622 (9th Cir. 1998).

Back to our hypothetical.  The client might be planning to go home after 30, 60, 90 days or more in jail, but what if the client was depending on SS retirement income -- reflecting his life-time work record -- in order to keep making house payments for that time? 

Originally the theory of suspending federal SS payments focused on "disability" payments, because the confined individuals were being maintained at public expense and their inability to work is a consequence of their criminal conviction, not their disability.  But what of the 1983 amendment, expanding the suspensions to SS retirement income?  In the Zipkin case linked above, at page 18-19, the Second Circuit rejected any distinction:

"We can perceive no reason why prisoners whose retirement benefits are suspended would have a need for replacement of income while prisoners whose disability benefits are suspended do not.  Rather, prisoners, as a group, do not have the need for a continuing source of income that nonprisoners typically may have. . . .  Social Security retirement benefits are designed to satisfy certain baseline economic needs, reasonably predictable when a worker retires. . . . They are not benefits held in trust and payable per se." 

It is a tough world, right?  But does it need to be this tough?  According to the Social Security Administration's recent statistics, among elderly Social Security beneficiaries, "21% of married couples and about 45% of unmarried persons rely on Social Security for 90% or more of their income."  Feel free to add your own thoughts in the "comments."

Caregivers React to Loveland Colorado Police Treatment of Aging "Shoplifter"

I've had several recent opportunities to talk with individuals serving as primary caregivers for family members who have varying stages and types of neurocognitive disorders, including but not limited to age-associated dementia.  One common concern in these conversations has been "that could have been my family member."

They are referring to news reports and body-cam videos of two officers in Loveland, Colorado in June 2020, as they apprehended, handcuffed, and took down "in a controlled manner" (the officers' description) a disoriented 72-year old woman. The officers were intent on arresting the woman following a report of her alleged "shoplifting" attempt of $14 dollars' worth of items at a local Walmart.   

According to the federal civil rights suit filed on April 16, 2021, the actions of the police officers fractured Karen Garner's left arm, dislocated her shoulder, and terrified her.  She was left for hours, crying and begging to go home while handcuffed in a booking cell, with no medical assistance offered or provided.  One booking room video shows the officers laughing and commenting about the body-cam footage.

Such conversationa explained what many caregivers were thinking about when they learned what happened to the "frail little thing" (the officer's word), the 5 foot tall, 80 pound woman who had earlier been diagnosed with "mild" dementia:

• It could have been a lawyer's uncle, who has PTSD following return from tours of military duty and an IED injuty in Afghanistan;
• It could have been a colleague's father, who was diagnosed with FTLD causing him to lose inhibitions, sometimes involving confusing behavior in public;
• It could have been an older friend who recently needed help because she could not find her way through the "new" self-checkout system at the grocery store;
• It could have been a member of my family, as my sister related to me a story I had not heard before, about how our mother, distracted by a cell-phone call, walked out of a grocery store without paying for groceries and didn't realize that until after she had loaded them into her car;
• It "was" a man in his  60s with early onset dementia who wandered away from his home one night, only to be arrested for loitering and placed in a special containment area of the jail, where he was beaten to a pulp during the night by his cellmate (as I have written about before, here).

Continue reading

Roundup on Nursing Home Articles

First, have you read this article from the New York Times? Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public

Twelve years ago, the U.S. government introduced a powerful new tool to help people make a wrenching decision: which nursing home to choose for loved ones at their most vulnerable. Using a simple star rating — one being the worst, five the best — the system promised to distill reams of information and transform an emotional process into one based on objective, government-blessed metrics.

The star system quickly became ubiquitous, a popular way for consumers to educate themselves and for nursing homes to attract new customers. During the coronavirus pandemic, with many locked-down homes unavailable for prospective residents or their families to see firsthand, the ratings seemed indispensable.

But a New York Times investigation, based on the most comprehensive analysis of the data that powers the ratings program, found that it is broken.

Then, a couple days later, another article from the New York Times, this time about California, California Sues Nursing Home Chain, Saying It Manipulated Ratings System

California prosecutors sued the country’s largest chain of senior living communities on Monday, accusing the company, Brookdale Senior Living, of manipulating the federal government’s nursing-home ratings system.

* * * 

The lawsuit is among the first of its kind to accuse nursing homes of submitting false information to Medicare’s ratings program. The system assigns stars — one being the worst, five being the best — to the nation’s more than 15,000 nursing homes.

Health News Florida explained that COVID Cases Plummet 83% Among Nursing Home Staffers Despite Vaccine Hesitancy, "Federal records show a steep decline in staff cases since December, when health care workers at thousands of nursing homes began getting their shots. Still, many are reluctant to get vaccinated."

Then, this New York Times article from Canada,  Elderly, Vaccinated and Still Lonely and Locked Inside

Long-term care homes, as they are called in Canada, were prioritized for the first precious doses of vaccines, to few objections — they were ground zero for the pandemic’s cruel ravage. Around 66 percent of the country’s terminal Covid-19 victims lived in nursing homes, among the highest rates in the world.

But while the vaccines have given the majority of nursing-home residents protection from death by the virus, so far they have not offered more life....

Justice Prevails: DOJ Announces Settlement

DOJ announced a settlement, Marketing Company Agrees to Pay $150 Million for Facilitating Elder Fraud Schemes

Epsilon Data Management LLC (Epsilon), one of the largest marketing companies in the world, has entered into a settlement with the Department of Justice to resolve a criminal charge for selling millions of Americans’ information to perpetrators of elder fraud schemes. 

Epsilon entered into a deferred prosecution agreement (DPA) with the Consumer Protection Branch of the Justice Department’s Civil Division and the U.S. Attorney’s Office for the District of Colorado in connection with a criminal information charging the company with one count of conspiracy to commit mail and wire fraud.

Under the terms of the DPA, which the parties submitted to the district court in Denver on Jan. 19, 2021, Epsilon agreed to pay a total of $150 million, with $127.5 million of that amount going to compensate victims of the fraudulent schemes that used consumer data sold by Epsilon. Epsilon also agreed to implement significant compliance measures designed to safeguard consumers’ data and prevent its sale to individuals or entities engaged in fraudulent or deceptive marketing campaigns. Further, the DPA requires Epsilon to maintain a procedure for consumers to request that it not sell their information to others.

Thanks to Professor Podgor for sending this to me.  It's nice to read good news!

Medically Vulnerable and in Prison

There have been some stories about the impact COVID is having on the prison population.  A news station in Denver, CO ran this story a while back, Broncos players join campaign to release medically-vulnerable inmates during pandemic. The ACLU in Colorado has an effort underway to get the Colorado governor to grant clemency to low-risk prisoners.  The sidebar on the ACLU page gives examples of folks in prison who are medically-compromised but likely low risk if released.  The Marshall Project has a state by state list of COVID in prisons, concluding about 20% of prisoners have COVID. The Federal Bureau of Prisons also has information covering COVID in prisons, which includes their modified operations plans. Although in person visits were suspended, a November update indicated those would be resumed, with safeguards. With the latest surges, I expect those will again be suspended. 

And although prisons are "COVID hotspots," prisoners may not be high in priority for the COVID vaccine per a recent article in the Washington Post, Prisons are covid hot spots. But few countries are prioritizing vaccines for inmates.

Since this is the elderlawprof blog, are you wondering what this has to do with Elder Law? Just google "elderly prisoners and covid" and look at the results. Here are a few:

• Supreme Court denies request from geriatric prisoners seeking Covid relief
• COVID-19 and the Compassionate Release of the Elderly, Infirm or High Risk
• Sick, elderly prisoners are at risk for covid-19. A new D.C. law makes it easier for them to seek early release.
• Pandemic underscores need to release more elderly prisoners | COMMENTARY

DOJ Announces Charges vs. Home Health Aide

A DOJ press released announced that a Home Health Aide [has been] Charged in Twenty-Two Count Indictment for Stealing Elderly Clients’ Identity, Banking, and Credit Card Information and Using it to Commit Financial Fraud.

According to allegations contained in the indictment and previously filed criminal complaint, for over a year starting in January 2019, Cofer worked as a home health aide servicing senior citizens in the South Florida community. During that time, Cofer gained access to her elderly clients’ social security numbers, dates of birth, bank accounts, credit cards, and other information.  Without the knowledge or consent of these elderly clients, Cofer allegedly used the information to steal money from bank accounts, open unauthorized credit card accounts, deposit unauthorized checks, make herself an authorized user on credit accounts, make unauthorized purchases of items such as a mannequin head and wig stand, pay her mobile phone, insurance, and other bills, and send money to a prison inmate, among other things.

The press release notes that additional information, including "court documents and information" here www.flsd.uscourts.gov.  Use case #s 20-MJ-8273 and 21-CR-80003-Middlebrooks.  

Court Called Upon to Prevent Misuse of Law to Penalize Homeless People

As many of our regular readers know, I grew up in Phoenix, Arizona.  One of the developments I have followed over the years is the number of homeless residents of Phoenix.  I'm a cyclist in my spare time and one of my regular downtown bike routes in Phoenix takes me past an ever-growing encampment.  In addition, a large park near my parents' home now serves as a daytime gathering spot for many.  In the scorching heat of the summer, and the desert cold of the winter, there are more and more people without adequate shelter.  The New York Times recently pointed out that in contrast to historical statistics suggesting that nationwide, "elderly" persons make up a small percentage of the homeless population, in the last few years we are seeing a surge among older adults.  See Elderly and Homeless: America's Next Housing Crisis, a feature article published on September 30, 2020, that, in part, profiles the issues in Arizona.  

So, it was with great interest that I read a report on a federal appellate decision, limiting the ability of municipalities to use criminal laws to penalize individuals, in an attempt to discourage or remove people who are living on the streets.  The report is by one of  Dickinson Law's third year law students, Jacqueline Stryker.  She writes in part:  

"The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance.  In Martin v. City of Boise, 920 F.3d 584 (9^th Cir. 2019), the 9^th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter.  The Court concluded that it does.  A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. "

Ms. Stryker observes in her conclusion, "Whether the decision of the Ninth Circuit in Martin will gain traction a local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen."

For more of Ms. Stryker's timely, concise case analysis, see:  Municipal Efforts to Combat Homelessness.

COVID and SNFs: Deaths Preventable?

The New York Times asked the hard question, whether COVID deaths in SNFs were preventable, in a recently published opinion from the editorial board. How Many of These 68,000 Deaths Could Have Been Avoided?

Around 40 percent of all coronavirus-related deaths in the United States have been among the staff and residents of nursing homes and other long-term care facilities — totaling some 68,000 people.

Those deaths were not inevitable. The novel coronavirus is adept at spreading in congregant living facilities, and older people face an increased risk of contracting and dying from it. But most of the nation’s nursing homes had months of warning about the coming threat: One of the first coronavirus outbreaks in the country was in a nursing home near Seattle, making it clear that such facilities ought to prepare.

The opinion discusses steps SNFs could have taken to reduce the chances of spread, the financial model for SNFs in the US. The opinion also discusses the reduction of oversight and notes

Every effort should be made to ensure that the bulk of the money that the government puts into this industry goes to patient care, not providers’ pockets. An investigation started by the House of Representatives into the nation’s largest for-profit homes is a meaningful step in this direction. The Justice Department should follow suit.

The opinion discusses the way SNFs get supplies for their PPEs, etc. as well as staffing shortages. The editors conclude with 3 recommendations

In the near term, lawmakers should provide for hazard pay for nursing home workers in the next relief package and should require all nursing homes to enact non-punitive sick-leave policies so that workers don’t infect colleagues or residents.

In the longer term, federal officials need to consider revising Medicaid reimbursement rates for long-term care so they support higher than minimum-wage salaries, and shifting reimbursement policies so at least some long-term care can be reimbursed with Medicare dollars.

Lawmakers and nursing home operators also would do well to consider a national initiative, perhaps involving student volunteers and internship programs, to recruit future workers to nursing home care. That work, which can be deeply rewarding, will remain urgently needed long after this crisis passes.

Guilty Plea in Prize Notification Scam

The DOJ announced a guilty plea in a huge prize notification scam, Defendant Pleads Guilty In Multi-Million Dollar Prize Notification Scam Affecting Elderly Victims.

Here's some of the salient information

A Las Vegas area resident charged with perpetrating a prize-notification scheme that bilked victims out of more than $10 million pleaded guilty...  to conspiracy to commit mail fraud based on her participation in a scheme that preyed upon hundreds of thousands of victims, many of whom were elderly and vulnerable, with fraudulent prize notices.  The notices led victims to believe that they could claim a large cash prize if they paid a small fee.  This was false; victims who paid the fees did not receive anything of value. 

. . .

“The defendant and her co-conspirators exploited the elderly and vulnerable by bombarding them repeatedly with false promises of wealth,” said Acting Assistant Attorney General Ethan P. Davis of the Department of Justice’s Civil Division. “Today’s guilty plea demonstrates the Department’s continuing commitment to bring to justice those who prey upon the elderly.” 

The good guys win! Thanks to my colleague, Professor Podgor, for alerting me to this.

Nursing Homes: Making Room for COVID-19 Residents?

Each day I get a email from Kaiser Health News (KHN) that contains articles collected from the prior day on various health topics.  Since COVID-19 arrived, the number of articles concerning nursing homes has greatly increased. I've refrained from writing about those-mainly because there are so many of them.  But here's a recent article that I felt was too important to pass by.

The New York Times,ran an article with this eye-popping headline:  ‘They Just Dumped Him Like Trash’: Nursing Homes Evict Vulnerable Residents. "Nursing homes across the country are kicking out old and disabled residents and sending them to homeless shelters and rundown motels." The article makes the point that caring for COVID-19 patients is more lucrative than long-term care residents. 

"Many nursing homes are struggling in part because one of their most profitable businesses — post-surgery rehab — has withered as states restricted hospitals from performing nonessential services. ... Treating Covid-19 patients quickly became a popular way to fill that financial void... Last fall, the Centers for Medicare and Medicaid changed the formula for reimbursing nursing homes, making it more profitable to take in sicker patients for a short period of time. COVID-19 patients can bring in at least $600 more a day in Medicare dollars than people with relatively mild health issues, according to nursing home executives and state officials."  Don't forget, however, that profit isn't the motive in every instance-remember back when the hospitals were jammed with COVID-19 patients and asked nursing homes to take some?

With SNFs shut down to outside visitors, Ombudsman visits may also be curtailed. And although the law requires that SNFs "find a safe alternative location for the resident to go, whether that is an assisted living facility, an apartment or, in rare circumstances, a homeless shelter... some homes have figured out a workaround: They pressure residents to leave. Many residents assume they have no choice, and the nursing homes often do not report them to ombudsmen."  Only a handful of facilities have a moratorium on resident evictions during the pandemic.

Hello CMS-are you watching this?

 

More Reasons for a Serious Bi-Partisan Commitment to Citizenship for DACA Health & Long-Term Care Workers

Shared by my colleague, Professor Medha Makhlouf, who heads Dickinson Law's Medical-Legal Partnership Clinic, this thoughtful article explaining the importance of DACA-recipient health care workers in the United States, especially now:    

The Covid-19 pandemic is stretching our public health system to its limits and challenging our ability to meet the urgent and critical medical needs of the country as never before. As executives responsible for the legal affairs of major hospitals and lawyers working in Covid-19 hot spots, we know how crucial it is to have every available front-line medical worker fighting this pandemic. . . . 

 

New data from the Center for American Progress reveals that the DACA-recipient health care work force includes more than 6,000 diagnosing and treating practitioners, including respiratory therapists, physicians assistants and nurses; some 8,000 health aides, including nursing assistants and orderlies; more than 7,000 other health care support workers; and some 5,500 health technologists and technicians.

 

The Association of American Medical Colleges told the Supreme Court that nearly 200 physicians, medical students and residents depend on DACA for their ability to practice medicine and serve their communities. Those 200 trainees and physicians alone would care for hundreds of thousands of patients per year in normal times — the association estimates as many as 4,600 patients per year, per person. Under the demands of the Covid-19 pandemic, those numbers will be much higher.

 

The Center for Migration Studies found that 43,500 DACA recipients work in the health care and social-assistance industries, including more than 10,000 in hospitals....

The decision on the DACA case is expected this week.  "If the Supreme Court upholds the decision to terminate DACA, nearly 700,000 people — including those health care workers — will lose their ability to work and live in the United States."  For more, ready the full NYT article, There's Only One Thing Stopping Trump From Deporting Health Care Workers.  

For once, the members of Congress from both sides of the aisle should be ready with emergency legislation for citizenship (or at a minimum, permanent residency status) for these essential workers.  It is the least we can do for people who are doing the most. And it is vital for the best interests of public health across the nation.  A win-win, if we can just focus on what's important.  

WOW!  Moments after I posted the above, I see the news flash that Supreme Court Rules Against Trump Administration Attempt to End DACA, A Win for Undocumented Immigrants Brought to U.S. As Children.  

After reading the opinion(s), it is clear that while DACA recipients have a temporary reprieve, the real need is serious consideration of true relief from fear of deportation.  Must they really wait until after the election?  

This "Should" Be Easy: Support DACA Workers in Health Care and Long-Term Care

The Supreme Court 's ruling on the fate of DACA-residents and workers in the U.S. could be issued this week.  Regardless of the outcome on the case itself, everyone who cares about quality of health care, including long-term care, should also care about the United States' need to be honest about how much health care depends on the hard work and commitment to care provided by temporary-status and undocumented-status  workers in health and personal care jobs.  I've seen DACA workers in action in elder care, and I've seen their families ripped apart by harsh immigration rulings.

NPR's Morning Edition had a short and yet deeply important segment today on Health Care Workers Who Are Awaiting Supreme Court DACA Decision.   Do listen to the podcast replay --  it is just 4 minutes -- and think about whether this is a key opportunity for a true, bipartisan solution for DACA-children (families) who so often are working in some of the most challenging (and dangerous) U.S. jobs during the COVID-19 pandemic.  Let's do the right thing.  

National Continuing Care Residents Association Joins Other Senior Living Advocates in Opposing COVID-19 Immunity

On June 1, 2020, the National Continuing Care Residents Association (NaCCRA) released its public statement detailing the organization's opposition to COVID-19 immunity or waivers of liability for nursing homes, adding to the growing chorus of opposition. They explain:  

CCRCs mainly provide three levels of care under one roof or on the same campus, normally comprised of independent living, assisted living, and skilled nursing care -- the latter two considered licensed long-term care facilities.  Our members can reside at various times in any of the three levels of care.  Fore example, one spouse can live independently while the other can live in assisted living or skilled nursing.  There are numerous variations of these living arrangements depending on the level of care required.

 

NaCCRA and its members are very sympathetic to the CCRC managers and front-line care/service workers as they labor during the coronavirus pandemic with its many challenges.  However, residents living and dying, many times alone, in nursing homes or assisted living apartments, should not be deprived of their legal rights or protections even in these most extraordinary times.

 

NaCCRA and its member residents living in continuing care settings are alarmed at the push to grant liability immunity to providers and operators of long-term care facilities in the face of the COVID019 epidemic.  Many states have acquiesced to provider association lobbyists at the expense of residents' legal protections.  NaCCRA believes that long term care providers must not be given a pass on negligence in any form simply due to a pandemic, which makes seniors in such congregate settings even more vulnerable.  

 

Therefore, we strongly oppose the liability waivers for COVID-19 legislated by some states.  WE urge that these be repealed and advocate on immediate moratorium on any future waivers for providers/operators of CCRCs and long-term care facilities.  It is our position that existing laws and negligence standards are more than adequate to protect long term care facilities that are sued if they have followed the proper standards of care and protocols.

My thanks to Jim Haynes, the current president of NaCCRA, for keeping us advised on their position.  

LTC Facilities: Roundup of Stories

It's hard to keep track of the numerous stories on COVID-19 in LTC facilities, reopening LTC facilities, CMS waivers, CMS guidance, shield laws in various states, and more. Although Professor Pearson and I have been blogging about these issues for a few weeks, I wanted to list a few more stories here (without discussing them) just in case you missed any of them.

• Nursing Homes Seek Immunity Amid COVID-19 Crisis, Alarming Advocates
• Nursing Homes to Get $4.9 Billion From HHS to Combat Virus (1) (may require subscription)
• U.S. nursing homes plagued by infection control issues pre-COVID-19: report
• Trump Administration Issues Guidance to Ensure States Have a Plan in Place to Safely Reopen Nursing Homes
• Trump wants nursing homes to test all staff and residents. That may not be possible.
• Toolkit on State Actions to Mitigate COVID-19 Prevalence in Nursing Homes
• Older does not equal expendable. We need to act in a way that protects our elders from coronavirus
• Halted Nursing Home Inspections Draw Ire of Lawmakers, Attorneys\

I have no doubt there are more...and will continue to be more.... so stay tuned.

AG Initiative vs. Financial Exploitation

Last week AG Barr was in Florida to announce an initiative. Department of Justice Charges Unprecedented Number of Elder Fraud Defendants Nationwide and Launches Hotline.

 

Attorney General William P. Barr, FBI Director Christopher A. Wray, and Chief Postal Inspector Gary R. Barksdale today announced the largest coordinated sweep of elder fraud cases in history.  This year, prosecutors charged more than 400 defendants, far surpassing the 260 defendants charged in cases as part of last year’s sweep.  In each case, offenders allegedly engaged in financial schemes that targeted or largely affected seniors.  In total, the charged elder fraud schemes caused alleged losses of over a billion dollars.

Take note of this statement from the press release--it's significant "During the event, the Attorney General declared “Prevention and Disruption of Transnational Elder Fraud” to be an Agency Priority Goal, making it one of the Department’s four top priorities."  As mentioned in the headline of the press release, the AG also announced the creation of a hotline,

[The] National Elder Fraud Hotline, which will provide services to seniors who may be victims of financial fraud.  The Hotline will be staffed by experienced case managers who can provide personalized support to callers.  Case managers will assist callers with reporting the suspected fraud to relevant agencies and by providing resources and referrals to other appropriate services as needed.  When applicable, case managers will complete a complaint form with the Federal Bureau of Investigation Internet Crime ComplaintCenter(IC3) for Internet-facilitated crimes and submit a consumer complaintto the Federal Trade Commission on behalf of the caller.  The Hotline’s toll free number is 833-FRAUD-11 (833-372-8311).

There was also a super cool "sweep" in all the federal districts: "U.S. Attorneys’ Offices in every federal district took part in the Elder Fraud Sweep announced today. Many federal prosecuting offices filed cases against perpetrators and/or facilitators of elder fraud. Others conducted outreach to law enforcement, community groups, seniors, or private industry. Other U.S. Attorneys’ Offices demonstrated exceptional devotion to the cause of elder justice by both filing cases and conducting outreach."

Check out the full press release to learn more details.

Don't Miss This Webinar: Public Charge and Elder Immigrants

Do you know about the Public Charge and Elder Immigrants issue? Justice is Aging has a webinar scheduled on this for March 9, 2020 at 2-2:30 eastern time..  Here's the info from the announcement.

Public Charge and Immigrant Seniors

In January, the U.S. Supreme Court removed the nationwide temporary injunction that had prevented the Department of Homeland Security (DHS) public charge immigration rule from taking effect. This means that the public charge rule that DHS finalized last August can go into effect nationwide, except in Illinois, where it is blocked by a statewide injunction. DHS announced that it will begin implementing the final rule on February 24th.

The Supreme Court’s decision endangers the health and well-being of older immigrants and their families and cruelly impedes the path to citizenship and family unification. However, it is not a final decision and we must continue to fight to stop this harmful policy from becoming permanent. The multiple cases challenging the underlying legality of the final public charge rule will continue in the courts. DHS has appealed all the district court decisions that issued preliminary injunctions to the Second, Fourth, Seventh, and Ninth Circuits. DHS has also asked the U.S. Supreme Court to hear the case.

Justice in Aging and our partners have filed amicus briefs in the Second and Ninth Circuits to ask the court to affirm the district courts’ nationwide injunctions and to highlight the ways in which this rule unfairly targets older immigrants, their families, and caregivers. This webinar, Updates on Public Charge & Older Immigrants, will begin with an overview of the public charge test and how it applies to older adults, discuss the current state of litigation, and provide information on what advocates need to know about the rule’s implementation.

Who should participate:
Aging and legal advocates, advocates serving immigrant communities, community-based providers, and others wanting to learn more about how changes to the public charge test and implementation of the new regulations impact older immigrants.

To register for the webinar, click here. More info about this issue is available from Justice in Aging here.

 

Medicare Part D Donut Hole-Gone or Not?

The New York Times an an article scrutinizing the status of the Part D coverage gap (a/k/a the Donut Hole), in Medicare’s Part D Doughnut Hole Has Closed! Mostly. Sorta.

The donut hole  was weird and unlike other types of insurance and as the article explains, "“designed that way because Congress had a self-imposed budget target,” said Tricia Neuman, who directs the Medicare policy program at the Kaiser Family Foundation.... In order to afford a low deductible, catastrophic coverage and protection for those with low incomes, lawmakers agreed to the doughnut hole. But what other kind of insurance works like that?"

The Affordable Care Act (ACA) contained a provision that gradually closed  the donut hole. "The final reduction, for generic drugs, slid into place on Jan. 1. Now, supposedly, there is no coverage gap. Federal regulations require that your plan (most Medicare beneficiaries can choose from nearly 30) average 25 percent cost-sharing for any drug."  But remember closing the donut hole is not the same as reducing the cost of prescription drugs.

There's still remaining weirdness with the Part D program, as the article highlights:

• This year, after meeting the $435 deductible, you generally pay a flat price for each covered drug during the so-called initial coverage period. Different plans assign drugs to different tiers for which you pay specified amounts.

But once your total drug expenditures hit $4,020, you’re responsible for 25 percent of the plan’s negotiated cost per drug — not a gap, exactly, but a shift.

If you were paying $45 for a prescription that costs $200, your share is now $50 — not a major change. But for a $500 drug, you’ll owe $125 until you reach the catastrophic threshold.

 . .

• It will now take longer to climb out of the not-exactly-a-hole.

Last year, you qualified for catastrophic coverage when your out-of-pocket expenditures reached $5,100.

This year, you don’t qualify until they hit $6,350, a big jump. The Affordable Care Act had maintained a lower threshold; this year, that provision ended.

Once there, your co-payment is a flat $3.60 to $8.95, or 5 percent of the drug’s cost, whichever is higher. (Not lower.)

• Part D has never capped out-of-pocket costs, even when you reach the supposedly safe shore of catastrophic coverage. Your 5 percent co-payment lasts the rest of the year.

. . .

All of this takes place against the backdrop of rising drug prices generally. From 2015 to 2017, more than a million Medicare beneficiaries each year passed the threshold for catastrophic coverage — more than twice the number when Part D began, according to a Kaiser Family Foundation analysis.

Oh and choosing the right Part D program is complicated.  The article notes that Congressional action is needed to reduce the drug prices. And what if the ACA is repealed??

Recent Interesting Cases

Getting ready for the start of the Spring 2020 semester.  I was looking through a list of recent cases from the AARP Foundation  in which they had filed amicus briefs. Docket: Recent or Open Amicus Cases includes  citations to the cases, summaries of the cases and copies of the amicus briefs. I think these are useful to give us some up-to-date info about litigation issues, and can also serve to provide topic ideas for our students who might be writing scholarly papers on an elder law topic. Check it out!

Elder Justice Mapping Webinar

Register now for an upcoming webinar from the Department of Justice webinar on Mapping Elder Justice Networks.  The webinar is scheduled for January 21, 2020  at 2 p.m. est.   Here is info about the webinar

Join us for the webinar, Mapping Elder Justice Networks, where we will introduce the new Elder Justice Networks Locator. 

The Locator is a map designed to help elder justice professionals to locate and collaborate with elder justice networks/teams across the nation.  Networks will be added in an on-going fashion.

This webinar will discuss the development of this resource, walk through how to find and use the Locator, and explain how to submit your network for inclusion.

Mapping Elder Justice Networks

Talitha Guinn-Shaver, Presenter

The Locator represents the teams that have provided information to participate in this project. Networks interested in being included in the Locator may submit their network name, type, address, web address and email to [email protected]. Please note that for-profit organizations and dot coms cannot be included.  Other rules may apply.  Submission is not a guarantee of inclusion in the Locator.

To register for this webinar, click here.