Monday, September 23, 2019

GAO Report on Elder Abuse & Oversight

The GAO has issued another report on quality in nursing homes and ALFs. This report, Elder Abuse: Federal Requirements for Oversight in Nursing Homes and Assisted Living Facilities Differ

reports

The Centers for Medicare & Medicaid Services (CMS) oversees the Medicare and Medicaid programs and is responsible for safeguarding the health and welfare of beneficiaries living in nursing homes and assisted living facilities. This includes safeguarding older residents from abuse—referred to as elder abuse. CMS delegates responsibility for overseeing this issue to state survey agencies, which are responsible for overseeing nursing homes. When assisted living facilities provide services to Medicaid beneficiaries, they are indirectly subject to CMS oversight through the agency’s oversight of state Medicaid agencies. GAO found that there are specific federal requirements for nursing homes and state survey agencies for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes. (See table below). For example, state survey agencies must prioritize reports of elder abuse in nursing homes based on CMS’s specified criteria and investigate within specific time frames. In contrast, there are no similar federal requirements for assisted living facilities—which are licensed and regulated by states. Instead, CMS requires state Medicaid agencies to develop policies to ensure the reporting and investigation of elder abuse in assisted living facilities. For example, CMS requires that state Medicaid agencies establish their own policies and standards for prioritizing reports when investigating incidents in assisted living facilities. Officials from the three selected states in GAO’s review said they apply certain federal nursing home requirements and investigation time frames for assisted living facilities when overseeing elder abuse.

Here's part of what the GAO did in investigating the issue:

To describe federal requirements for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes and assisted living facilities, we reviewed relevant statutes and regulations and CMS guidance, including the State Operations Manual and HCBS waiver guidance and interviewed CMS officials regarding the agency’s oversight of the requirements. We selected a non-generalizable sample of three states—Connecticut, Oklahoma, and South Dakota—that have implemented HCBS waivers and vary in HCBS waiver program size and geography.10 In each state, we reviewed their waiver agreements and spoke with officials from the state survey agency, state Medicaid agency, and the state agency responsible for licensing assisted living facilities and investigating complaints.11 We also interviewed CMS officials, including regional office officials, about their oversight of state survey agencies and HCBS waivers in our selected states. We interviewed representatives from national stakeholder groups representing consumers, facilities, Medicaid directors, and investigators to obtain their perspectives on elder abuse in nursing homes and assisted living facilities. We also reviewed related audits issued by the HHS-OIG and state auditors between 2014 and 2018 related to reporting and investigating elder abuse in nursing homes and assisted living facilities and included them with a discussion of related GAO reports.

The full report is available here.

 

September 23, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, September 16, 2019

Long-Term Care Hospitals

A recent story from the New York Times highlights the role of long-term care hospitals in carrying for elders. For Older Patients, an ‘Afterworld’ of Hospital Care explains that for these long-term care hospitals, sometimes referred to as " a long-term acute care hospital"... is where patients often land when an ordinary hospital is ready to discharge them, often after a stay in intensive care.But these patients are still too sick to go home, too sick even for most nursing homes." 

Never heard of these LTCH?  There are a fair number of them, and they treat quite a large number of individuals."Close to 400 such hospitals operate around the country, some free-standing, others located within other hospitals, most for-profit. They provide daily physician visits, high nurse-to-patient ratios and intensive therapy...In 2017, they accounted for about 174,000 hospital stays. Medicare covered about two-thirds of them, at a staggering cost of $4.5 billion, the Medicare Payment Advisory Commission has reported."

A recent study published in the Journal of American Geriatrics Society notes poorer outcomes for these individuals. The article notes that there is a decline in the use of these hospitals, with tighter regulations and more stringent patient requirements.  Oftentimes the LTCH is a stop between the hosptial and nursing home.  This "should prompt frank discussions among families, doctors and patients about whether a frail older person leaving an intensive care unit or standard hospital truly wants to spend another month or more in an L.T.C.H. and then move to a nursing home, which is the likely scenario."  There are other options and the article notes the importance of having a conversation with the patient and family about them.

 

September 16, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, September 11, 2019

Two Upcoming Webinars on Important Topics

There are two upcoming webinars that I wanted to alert you about so you can register.  The National Center on Elder Abuse is hosting a webinar on September 18, 2019 from 3-4 edt, on Recognizing and Addressing Abuse in Long-Term Care Facilities. According to the email announcement

People living in long-term care (LTC) facilities can be vulnerable to abuse and neglect. Recognizing and addressing abuse and neglect in LTC facilities as well as knowing their rights is crucial for both residents and their family members.   

This webinar presented by the Paralysis Resource Center will help to understand the rights of residents of LTC facilities, identify the signs of abuse and neglect, and learn how to report concerns and complaints to the appropriate agencies. Attendees will learn about the important role of the Long-Term Care Ombudsman Program in addressing complaints and how to contact the program. The webinar will also seek to empower people with paralysis and their family members by providing information on choosing a long-term care facility and tips for advocating for quality care. 

The webinar will be presented by Amity Overall-Laib, Director of the National Long-Term Care Ombudsman Resource Center (NORC). Amity served as a local long-term care ombudsman in Texas for six years advocating for residents in 65 nursing homes and 130 assisted living facilities in a 12-county region. During her tenure in Texas, she led the formation of the Gulf Coast Culture Change Coalition, resulting in two free conferences for long-term care consumers, providers, advocates and regulators promoting culture change practices and has presented at local, state, and national conferences. She also had the pleasure of representing fellow local ombudsmen on the Board of Directors for NALLTCO (National Association of Local Long-Term Care Ombudsmen). Amity was previously a consultant to NORC then served as Manager for Program and Policy. 

To register, click here.

Next, the National Center on Law & Elder Rights is hosting a webinar on Issues at the Intersection of Social Security and Medicare on October 8 at 2 eastern time. According to the email announcement,

Social Security benefits and Medicare benefits are closely intertwined, and most people who receive one also receive the other. The close connection means that a problem with one benefit will sometimes cause problems with the other benefit. It can be difficult to figure out which agency is responsible and where to go for relief. This webcast will focus on why cross-program issues occur and what advocates can do to resolve them.

Presenters will share:

  • Agencies and key players: Who is in charge of what?
  • Situations when Medicare and Social Security benefits are linked and when they are not.
  • Issues that arise and strategies for resolving them, including state buy-in issues for Medicare Part B premiums, and challenges keeping Medicare active during an appeal of the termination of Social Security disability benefits.

To register, click here.

September 11, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs, Social Security, Webinars | Permalink | Comments (0)

Tuesday, September 10, 2019

Hunger Amongst America's Elders

Kaiser Health News addressed the topic of hunger amongst elders in Starving Seniors: How America Fails To Feed Its Aging.

This is incredibly sobering

[M]illions of seniors across the country quietly go hungry as the safety net designed to catch them frays. Nearly 8% of Americans 60 and older were “food insecure” in 2017, according to a recent study released by the anti-hunger group Feeding America. That’s 5.5 million seniors who don’t have consistent access to enough food for a healthy life, a number that has more than doubled since 2001 and is only expected to grow as America grays.

While the plight of hungry children elicits support and can be tackled in schools, the plight of hungry older Americans is shrouded by isolation and a generation’s pride. The problem is most acute in parts of the South and Southwest. Louisiana has the highest rate among states, with 12% of seniors facing food insecurity. Memphis fares worst among major metropolitan areas, with 17% of seniors like [one mentioned in the article] unsure of their next meal.

You're thinking to yourself, surely there are options. What about those federally funded meals programs? Something else? Uh....not likely.

[G]overnment relief falls short. One of the main federal programs helping seniors is starved for money. The Older Americans Act — passed more than half a century ago as part of President Lyndon Johnson’s Great Society reforms — was amended in 1972 to provide for home-delivered and group meals, along with other services, for anyone 60 and older. But its funding has lagged far behind senior population growth, as well as economic inflation.

The biggest chunk of the act’s budget, nutrition services, dropped by 8% over the past 18 years when adjusted for inflation, an AARP report found in February. Home-delivered and group meals have decreased by nearly 21 million since 2005. Only a fraction of those facing food insecurity get any meal services under the act; a U.S. Government Accountability Office report examining 2013 data found 83% got none.

Oh and by the way-the act expires at the end of this month-it's now up to COngress to reauthorize and determine its budget.  Food stamps may be an option, but "only 45% of eligible adults 60 and older have signed up for ... SNAP, the food stamp program for America’s poorest. Those who don’t are typically either unaware they could qualify, believe their benefits would be tiny or can no longer get to a grocery store to use them."

Government programs have long wait lists but there are those who get help, "2.4 million people a year benefit from the Older Americans Act’s group or home-delivered meals, allowing them to stay independent and healthy."  Poor diet, hunger, and starvation have significant consequences, in some instances resulting in major health issues or even death.

Where you one of those kids growing up whose parent said something along the lines of "eat your vegetables (or clean your plate), there are children starving in (insert country)?  Nowadays it may be "eat your vegetables, grandma is starving...."

Keep an eye on Congress' actions on reauthorization-it's important!

 

September 10, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Food and Drink, Health Care/Long Term Care, Other | Permalink | Comments (0)

Wednesday, September 4, 2019

Assisted Living-Is It the Right Option for Assistance in Living?

My colleague and dear friend Professor Bauer, sent me the link to a recent op-ed in the New York Times,  How Not to Grow Old in America.The assisted living industry is booming, by tapping into the fantasy that we can all be self-sufficient until we die.

Assisted living seems like the solution to everyone’s worries about old age. It’s built on the dream that we can grow old while being self-reliant and live that way until we die. That all you need is a tiny bit of help. That you would never want to be warehoused in a nursing home with round-the-clock caregivers. This is a powerful concept in a country built on independence and self-reliance.

The problem is that for most of us, it’s a lie. And we are all complicit in keeping this dream alive.

The author notes that the ALF industry has a financial incentive to market their product and it's appealing to the kids of those who reside in ALFs.  The author writes, "[t]he irony of assisted living is, it’s great if you don’t need too much assistance. If you don’t, the social life, the spalike facilities, the myriad activities and the extensive menus might make assisted living the right choice. But if you have trouble walking or using the bathroom, or have dementia and sometimes wander off, assisting living facilities aren’t the answer, no matter how desperately we wish they were." Further, the author offers data that most of these residents need more care than that provided and argues in favor of regulation, using several actual cases as illustrations to support the call for regulation.

We need to let go of the ideal of being self-sufficient until death. Just as we don’t demand that our toddlers be self-reliant, Americans need to allow the reality of ourselves as dependent in our old age to percolate into our psyches and our nation’s social policies. Unless we face up to the reality of the needs of our aging population, the longevity we as a society have gained is going to be lived out miserably.

September 4, 2019 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, Retirement, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, September 3, 2019

Financial Fraud in US Upcoming Conference

The FINRA Foundation has announced an upcoming conference, Research Conference on The State of Financial Fraud in America. The conference will be held on October 2, 2019 in Washington, D.C.   Here's some info about the conference:

Featured Keynote: Cybercrimes, Digital Fraud and You

It's no longer just about changing your password, cyber threats are growing in frequency and complexity. As technology continues to develop, there are more opportunities for impactful cyber-attacks. In this featured talk, Roy Zur, Cybint Solutions, will discuss trends in cyber-fraud tactics, how Dark Web markets and forums fuel cybercrime, and how cybercriminals utilize digital currencies.


Sessions include:

  • What Separates Victims from Non-Victims?
  • From Fraud Victim to Fraud Fighter
  • What We Can Learn from Neuroscience
  • Life Course Transitions, Thresholds, and Turning Points to Elder Financial Exploitation
  • Promising Interventions
  • Federal Approaches
  • Serving the Victims of Financial Crimes
  •         Where Do We Go from Here?

To register, click here.

September 3, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 30, 2019

Accessibility of Elder Housing-What Happens When the Elevator is Out of Order?

A local news station recently ran an article about the impact of a broken elevator on the residents who live on top floors in  8 On Your Side gets results for seniors in building with broken elevator.   Knowing my colleague and dear friend, Professor Bauer, had written an article on 55+ housing that included a discussion of accessibility issues, I asked him if he'd write a guest post for us on this topic. Here it is:

Would You Please Just Fix It?

By
Mark D. Bauer
Professor Law
Stetson University College of Law

 

A recent news story in Tampa Bay reported that the single elevator in a mid-rise apartment building stopped working in late May and would not be repaired until October.  That alone is surprising and seems wrong.  But what makes this story particularly shocking is it occurred in an age 62 and older HUD subsidized building.  Even more shocking:  there are no federal laws regulating elevator repairs in federally managed or sponsored elder housing.

The story was made for television.  A local news station interviewed numerous tenants with disabilities incapable of walking down staircases.  One elder tenant interviewed said she had not been able to leave her home in two months and she found it very depressing.  I have little doubt that most anyone would feel the same way.

The good news is that by airing this story and providing publicity to the tenants, the company managing the apartment complex arranged for free hotel rooms for any resident desiring one.  The elevator still will not be repaired until October because a part needs to be manufactured abroad.  But at least the elder tenants now have an alternative to remaining prisoners in their own homes.

The bad news is that while this particular situation may be extreme, elder residents of multi-story apartment buildings are often trapped in their homes with little warning and no real alternative.  The fact that most elevator repairs take less than six months is little comfort.

Department of Housing and Urban Development regulations require only the most basic life safety features in elder housing, such as smoke detectors.  Most state and local laws covering elevators require that they be inspected and remain in good repair.  It is always hard to search for the absence of a law or a case, but I have found nothing in the United States that regulates how long a repair may take.  Unfortunately, I suspect the answer is “as long as needed.”

I did find one relevant case in Indiana where residents of elder housing suffered without elevators for over a month and then sued.  On procedural grounds, the federal court held that the residents might have a viable argument under the Americans with Disabilities Act but could not sue under traditional landlord-tenant law (here the residents claimed that the broken elevator “constructively evicted” them).  And as you might imagine, once the judge opened the door just a crack for possible litigation, the owners of the elder housing complex immediately fixed the elevator and settled with the residents.

It is ironic that the government sponsors or subsidizes elder housing without ensuring the physical safety of the residents, particularly when private entities often profit through participation in these programs.  In researching this issue, a simple Google search produced literally hundreds of news stories about elders all over the country being trapped in multi-story buildings during lengthy elevator repairs.  Like the situation here in Tampa Bay, the elevators were often repaired quickly after a local news story.

Even elevators in good repair cannot function without electricity.  After many elders were killed or injured in Florida after a major hurricane in 2005 made their apartments inaccessible, a state law was passed requiring all 55 and older housing to add emergency generators for elevators.  The real estate lobby was particularly effective here and got the state legislature to repeal the law a short time later.

Subsidized or government-owned congregate housing for elders is aging; few units have been added since the 1980s, and certainly not enough to replace housing demolished or converted to other uses.  Five elevator companies remain after industry consolidation, and only one is located in the United States.  It is no surprise then that elevators installed in the last century are difficult to repair.  Cities and counties with large elder populations often spend extraordinary amounts of money responding to emergency calls requiring firefighters to carry elders down staircases.

It is easy to ignore a problem like stranded elders in high-rises because any single building has these problems infrequently, and with no publicity.  But nationally we are putting lives in danger and wasting precious public funds by ignoring the problem.  Currently it is very unlikely that HUD will take any corrective action.  But in the long-run, it would be much cheaper to plan for broken elevators by requiring elder communities to provide for temporary accessible housing, or coordinate services necessary for daily living, or require emergency generators in mid- or high-rise buildings with only one elevator.

Professor Bauer's law review article on 55+ housing is available here.  Thanks Professor Bauer!

August 30, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, State Statutes/Regulations, Television | Permalink | Comments (1)

Wednesday, August 28, 2019

Veterans Victims of Consumer Scam

The New York Times recently reported indictments against five perpetrators of an identity theft scam that targeted vets.

5 Indicted in Identity Theft Scheme That Bilked Millions From Veterans explains how the scam worked:

First, they secretly photographed the Social Security and bank account numbers of thousands of veterans and senior military members on a computer screen at a United States Army base in South Korea.

Then, they used the personal information to withdraw or reroute millions of dollars in disability benefits and other payments made to veterans. The stolen funds were later wired to the bank accounts of so-called money mules and laundered so that they could not be traced.

The perpetrators were charged with aggravated identity theft, wire fraud and conspiracy according to the article.  Described as the largest ever perpetrated against military personnel, "the personal information of more than 3,000 veterans and military personnel had been compromised over a period from 2014 to 2019. Many of the victims were disabled and older, and were unlikely to access their account information online." DOJ is still looking to identify victims.  "The Justice Department and Veterans Affairs are in the process of notifying victims and trying to help them recover lost funds."

August 28, 2019 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other, Veterans | Permalink | Comments (0)

Tuesday, August 27, 2019

Medicare Observation Status: Post-Trial Report

I reported a couple of weeks ago about the trial in federal court in Connecticut on observation status. The trial has concluded. Here is an update from the Center for Medicare Advocacy

Since 2011 the Center for Medicare Advocacy has been pursuing a nationwide class action lawsuit seeking an appeal for Medicare beneficiaries who are classified as hospital outpatients in observation status. (Alexander v. Azar, 3:11-cv-1703, U.S. District Court, Connecticut.) Co-counsels in the case are Wilson, Sonsini, Goodrich & Rosati and Justice in Aging.

The Alexander trial was held before US District Court Judge Michael Shea from August 12 – 20, 2019. The Judge ordered post-trial briefing, which is expected to take approximately 75 days. Then the parties will await Judge Shea’s decision.

Medicare beneficiaries who received “observation services” in a hospital on or after January 1, 2009 and either did not have Medicare Part B, or, were hospitalized for at least three consecutive days but not three days as an inpatient, may be a member of the Alexander class. No action is required to “join” the class. Individuals who meet the class definition, are in the class (note that the class definition is subject to change). We recommend saving paperwork related to the hospital observation status and to costs that may have resulted from it.

August 27, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink

Wednesday, August 21, 2019

Recent Developments on Guardianship Laws

There are a couple of recent developments I wanted to point out to you. One is a bill recently introduced in the House of Representatives, H.R. 4174, the Guardianship Accountability Act of 2019.  Section Two of the bill contains findings and purposes:

 (a) FINDINGS.—Congress finds the following:

(1) An estimated 1,300,000 adults and approximately $50,000,000,000 in assets are under the care of guardians in the United States.

(2) Most guardians are selfless, dedicated individuals who play an important role in safeguarding individuals in need of support. However, unscrupulous guardians acting with little oversight have used guardianship proceedings to obtain control of individuals in need of support.

(3) Once a guardianship is imposed, there are often few safeguards in place to protect against individuals who choose to abuse the system and few States are able to report accurate or detailed guardianship data.

(4) A full guardianship order may remove more rights than necessary and may not be the best means of providing support and protection to an individual. If individuals subject to guardianship regain capacity, all or some rights should be quickly and efficiently restored.

(5) States should encourage courts to use alter natives to guardianship through State statutes, including the adoption of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, to ensure better protections and control for individuals being considered for guardianship and those pursuing a restoration of their rights.

(6) A national resource center on guardianship is needed to collect and publish information for the benefit of courts, policy makers, individuals subject to guardianship, guardians, community organizations, and other stakeholders.

(b) PURPOSES.—The purposes of this Act are to help States improve guardianship oversight and data collection by—

 (1) designating a National Online Resource Center on Guardianship;

(2) authorize grants for the purpose of developing State Guardianship Databases; and

(3) establishing procedures for sharing background check information related to appointed guardians with other jurisdictions.

The bill calls for the Elder Justice Coordinating Council to establish the National Online Resource Center on Guardianship as well as some steps at the state level regarding data collection and analysis.   Read the bill here.

The second item is from the Governor of New Mexico who in a recent speech at the state's conference on aging indicated improving the guardianship system is a priority. Governor vows to stop guardianship abuse  explains that in her speech the Governor

“Here in New Mexico, veterans, senior citizens and disabled adults have been taken advantage of by unscrupulous court-appointed, corporate guardians,” she told the conference....

Corporate guardians, she said, “have been stealing people’s property, separating them from their families and hiding their benefits, as well as “locking folks away where nobody can find them and nobody can visit.”

Her administration, she said, is working to prevent this and adopt the best possible standards and safeguards. McCoy, who will become the director of the state Developmental Disabilities Planning Council, will lead that effort.

There is more action that just these two items, so keep reading this blog as we report on more updates.

August 21, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Medicare Abroad? Don't Retire Abroad Without Thinking This Through.

Kaiser Health News ran an article about the issues Medicare presents for beneficiaries who want to retiree to other countries. Dream Of Retiring Abroad? The Reality: Medicare Doesn’t Travel Well explains the issues:

As the number of American retirees living overseas grows, more of them are confronting choices ... about medical care. If they were living in the United States, Medicare would generally be their coverage option. But Medicare doesn’t pay for care outside the U.S., except in limited circumstances.

Expatriate retirees might find private insurance policies and national health plans in other countries. But these may not provide the high-quality, comprehensive care at an affordable price that retirees expect through Medicare. Faced with imperfect choices, some retirees cobble together different types of insurance, a mix that includes Medicare.

The article notes that the quality of the health care may be dependent on the country, and as the number of U.S. retirees move to other countries, they need to think hard about how they will pay for health care. The article discusses issues with private health insurance policies, the costs and rates, which may be different depending on the country.  Even with private health insurance, expats need to look at Medicare as the article explains:

Even when retirees buy a private policy, Medicare is another piece of the puzzle that they have to consider. Once people become eligible for Medicare coverage, usually at age 65, they face a 10% premium penalty for every 12 months they are not enrolled in Part B, which covers outpatient services. (People who are 65 but still covered by an employer plan generally do not face that penalty.)

After paying into the Medicare system for decades, it’s no wonder some expats are frustrated that they can’t generally use the program outside the United States.

That’s just the way the law is written, an official at the federal Centers for Medicare & Medicaid Services said.

...

And retirees should honestly consider whether they will spend the rest of their lives overseas.

August 21, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, International, Medicare | Permalink | Comments (0)

Sunday, August 18, 2019

Observation status trial

Last week, the class action suit against CMS on observation status finally went to trial.  According to the story from the Medicare Rights Center, Lawsuit Seeks to Improve Medicare Beneficiary Access to Nursing Facilities explains the importance of the case, as the trial started last week:

Because an observation stay is not officially considered an inpatient stay, it does not count as a qualifying hospital stay for purposes of Medicare SNF coverage—which means Medicare will not pay for any subsequent SNF care. This leaves patients on the hook for the entire cost of a needed SNF stay—potentially thousands of dollars.  Beneficiaries unable to afford this care may self-discharge against medical advice and return home before they are physically or mentally ready, and potentially suffer further devastating and expensive acute health effects.

Currently, people with Medicare cannot appeal the decision to classify a hospital stay as an outpatient stay, but a court case—Alexander v. Azar—may change that. In 2011, seven plaintiffs filed a class action lawsuit to try to gain the right to appeal the decision to classify them as outpatients in observation stay instead of as inpatients who would potentially be eligible for SNF coverage. After many twists and turns, the case has finally made it to trial.

More information about the trial that got underway last week was provided in a Kaiser Health News article, Class-Action Lawsuit Seeks To Let Medicare Patients Appeal Gap in Nursing Home Coverage which contains lots of interesting info about the issue and the litigation.  For example, "'HHS’ Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It’s No. 1 on a list issued last month of the 25 most important inspector general’s recommendations the agency has failed to implement." The importance of this case can't be emphasized enough.  I'll update you when I know more.

August 18, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Other | Permalink | Comments (0)

Thursday, August 15, 2019

Are Long Term Care Insurance Losses at the Heart of Financial Woes for General Electric?

The Wall Street Journal and other news sources are reporting on a financial research report released publicly today by an accounting expert -- the one who blew the whistle on the Bernie Madoff scheme -- and his investigation team, that alleges massive inaccuracies and fraudulent filings by General Electric Company.  GE officials are fighting back, alleging market manipulation is the motive behind the report.  From a Wall Street Journal article on Thursday, it seems GE's liability for losses on its long-term care insurance products is a key focus:

The Markopolos group includes John McPherson, co-founder of MMS Advisors, forensic accountants specializing in the insurance industry. The group worked for seven months to analyze GE’s accounting.

 

Mr. Markopolos said he is going public with the report now because the group just finished its work. It had been working on another insurance case when GE’s insurance problems caught its eye, he said.

 

The group claims GE’s long-term-care insurance holdings are a bigger liability than the company is letting on. The report estimates GE will need to boost its insurance reserves by $18.5 billion in cash and take a $10.5 billion charge because of an accounting change required by 2021.

 

Those figures are on top of a $15 billion reserve boost already taken by GE over seven years to cover its exposure to long-term-care policies, which cover expenses like nursing homes and assisted living. The policies have proved to be a problem for many insurers. The companies drastically underestimated the number of future claims and how long people would draw on the coverage before dying.

 

“We believe that our current reserves are well-supported for our portfolio characteristics, and we undertake rigorous reserve adequacy testing every year,” GE said in its press release. 

On the one hand, as an occasional observer of LTC industry woes, it seems hard for me to believe that at this point any company would try to hide or downplay the high-profile losses that the LTC industry has encountered for more than 10 years.  Nonetheless, the whistleblower team's  allegations are pretty bold, especially set against the market instability overall this week.  

August 15, 2019 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 7, 2019

Got a Question About Social Security Retirement?

The New York Times recently ran an article, 7 of Your Most Burning Questions on Social Security (With Answers).

The questions include the future of Social Security, spousal and survivors benefits, the length of benefits, delayed retirement vs. "break even" claiming,  the lowered amount of benefits for those who temporarily leave the work force for caregiving, taxing benefits, and self-employment. 

These are all really good questions (I hope they do another article, cause we all know there are more than 7 burning questions.)  The answers are clear and to the point. I plan to have my students read the article before we cover the topic this fall semester (which will be starting before we know it!) You should read it, too!

August 7, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (0)

Tuesday, July 30, 2019

Medicare Plan Finders Confuse or Help?

Have you ever used the Medicare Plan Finder?  The GAO released a report a few days ago about it. Medicare Plan Finder: Usability Problems and Incomplete Information Create Challenges for Beneficiaries Comparing Coverage Options explains that the website isn't too user-friendly, with a redesign coming soon.

Medicare beneficiaries have many decisions to make when selecting their health and prescription drug coverage. Their choices affect their out-of-pocket costs and which providers they can see. The Medicare Plan Finder website is a primary source for comparing options.

Many officials who assist beneficiaries in selecting coverage—about three-quarters of those we surveyed—told us beneficiaries struggle with the website. They and others said it is difficult to navigate, contains complex terms, and lacks information needed to compare coverage options.

Medicare’s administrator plans to launch a redesigned website in August.

Here are the highlights from the GAO report:

The Medicare Plan Finder (MPF) website—a primary resource for comparing Medicare coverage options—is difficult for beneficiaries to use and provides incomplete information, according to stakeholders and research studies. These sources and directors of State Health Insurance Assistance Programs (SHIP) GAO surveyed—who assist beneficiaries with their Medicare coverage choices—reported that beneficiaries struggle with using MPF because it can be difficult to find information on the website and the information can be hard to understand. For example, MPF

requires navigation through multiple pages before displaying plan details,

lacks prominent instructions to help beneficiaries find information, and

contains complex terms that make it difficult for beneficiaries to understand information.

In response to GAO's survey, 73 percent of SHIP directors reported that beneficiaries experience difficulty finding information in MPF, while 18 percent reported that SHIP counselors experience difficulty.

Further, the results include "incomplete estimates of costs under original Medicare, making it difficult to compare original Medicare and Medicare Advantage (MA), the program's private heath plan alternative."  Further, Medigap plan info isn't included in the results, with 75% "of the SHIP directors surveyed [reporting] that the lack of Medigap information in MPF limits the ability of beneficiaries to compare original Medicare to MA."

This is worrisome, given the emphasis on using the Medicare website for beneficiaries.  So it will be important to examine the redesigned website to make sure it is more user-friendly, and contains complete and accurate info.

The full report is available here. Stay tuned.

 

 

July 30, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Web/Tech | Permalink | Comments (0)

Monday, July 29, 2019

CMS Regs on Pre-Dispute Arbitration Clauses in SNF Contracts

CMS issued their final rule on the use of pre-dispute arbitration clauses in nursing home contracts, CMS Rules Put Patients First Updating Requirements for Arbitration Agreements and New Regulations That Put Patients Over Paperwork.

The rule, published in 84 Fed. Reg. 34718 on July 16, 2019, amends 42 C.F.R. 483.70(n):

483.70 Administration. * * * * * (n) Binding arbitration agreements. If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section. (1) The facility must not require any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility and must explicitly inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care at, the facility. (2) The facility must ensure that: (i) The agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands; (ii) The resident or his or her representative acknowledges that he or she understands the agreement;(iii) The agreement provides for the selection of a neutral arbitrator agreed upon by both parties; and (iv) The agreement provides for the selection of a venue that is convenient to both parties. (3) The agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it. (4) The agreement must explicitly state that neither the resident nor his or her representative is required to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility. (5) The agreement may not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with § 483.10(k). (6) When the facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years after the resolution of that dispute on and be available for inspection upon request by CMS or its designee. * * *

and is effective September 16, 2019.  The ABA Commission on Law & Aging published an article about the changes: Our New Nursing Home Arbitration Mandate: Educate, Educate, Educate

The recent rule by the Centers for Medicare and Medicaid Advocacy (CMS) permitting nursing homes to enter into pre-dispute, binding agreements with residents or their representatives was deeply disappointing to resident advocacy groups, including the ABA and its Commission on Law and Aging, which advocated strongly for a full ban on nursing home arbitration agreements.

Like many groups, we do not believe that the time of admission to a nursing home is appropriate for informed decision-making about such agreements. Nursing home admission is usually a time of crisis for individuals and their families; the resident is in an impaired condition, the choice of nursing homes may be severely limited, and the resident and family have no idea of the kind of dispute that might be bound by an arbitration clause in the future. There are advantages and disadvantages to arbitration, but it is only after a dispute arises that those pros and cons can be fully weighed, and an informed and voluntary decision can be made.

The author of the article, Charles Sabatino, executive director of the Commission, describes the role of elder law attorneys as "educate residents, their families, and the public more emphatically about these agreements and advise them not to sign these at admission or at any time before a dispute arises."  He notes the good part of the change in the rule: "its mandate that arbitration agreements must not be used as a condition of admission to, or as a requirement for, a resident to continue to receive care at the facility. Moreover, the facility must explicitly inform residents or their representatives of the right to not sign the agreement as a condition of admission, or as a requirement, to continue to receive care at the facility. And the arbitration agreement itself must expressly state the same."

What is important about the new rule? Several things, according to Mr. Sabatino, including the ban on agreeing to arbitration as a condition of admission, a 30 day right of rescission, the requirement that the facility explain the contract in a way that is understandable to the resident or representative, and that the contract can't "contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman."

So, stay tuned.... let's see how this works.

July 29, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Thursday, July 25, 2019

Bereavement, Caregiving, and Immigration

I've written about this combination of topics before.  I can't quite believe I'm doing so again.  

My sister and I lost our last parent on Friday.  As with our father, who died in 2017, our mother's final months were complicated by dementia.  Thankfully her death was gentle -- she just sort of wound down at age 93 (and 9 months -- isn't it amusing how we start counting the months again, as people tend to do when someone is nearing 5 and a half years of age).  

Both of our parents had full and fulfilling lives, or as one of our friends commented, "your mother used the full runway."  The care team at an assisted living community that specializes in dementia care came to know both of our parents well, and our bereavement was matched by the tears of many of the individual caregivers, each of whom had their own memory or story to share.  As several of them noted, in her last days Mom seemed determined to "find" Dad.  And, of course, we like to think she did find him.

But one additional complication was that as our mother reached her last hours, one caregiver who has worked for our family for several years, and that caregiver's mother, who has worked her way from CNA to head of a care team, were both coping with their own worries and grief.  Both of them are U.S. citizens, but as is often true in the Southwest, a family member, a husband, is not documented.  Recently he was picked up by ICE.  No one knows quite where he is yet, but the family members know they are likely to face hard choices once he is deported.  The family members must decide how and where they will live.  My parents' care team -- and by extension the community of residents at the assisted living center -- could lose two more skilled and devoted caregivers.  The fabric of aging care grows ever more fragile. 

July 25, 2019 in Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, International | Permalink | Comments (0)

Monday, July 15, 2019

Low SNF Staffing Numbers

According to a recent story published in Modern Healthcare,  Nursing home staffing levels often fall below CMS expectationsfocuses on a new study that "[n]ursing home staffing levels are often lower than what facilities report, which could compromise care quality, new research shows....Self-reported direct staffing time per resident was higher than the CMS' payroll-based metrics 70% of the time, according to a new study published in Health Affairs. Staffing levels were significantly lower during the weekends, particularly for registered nurses."

We know the importance of staffing as a quality measure and ensuring quality of care, so this study is very important. "Researchers compared facility-reported staffing and resident census data and annual inspection survey dates from the Certification and Survey Provider Enhanced Reports to the CMS' long-term care facility Staffing Payroll-Based Journal from 2017 to 2018. The payroll-based data offered a more granular look, showing how staffing evolves over time rather than relying on static point-in-time estimates that were subject to reporting bias and rarely audited...."

When comparing for-profit SNFs with NFP SNFS, the researchers found the for-profits "more likely to report higher staffing numbers ... and [s]taffing levels increased before and during the times of the annual surveys and dropped off after." 

The use of payroll data to determine staffing levels has only been in effect a little over a year.  The story focuses specifically just on staffing levels. A log-in is required to access the study.

July 15, 2019 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Wednesday, July 10, 2019

Poor Care in Hospice: OIG Report

Ugh, this article in the Washington Post covers a serious and worrisome topic. Hospices go unpunished for reported maggots and uncontrolled pain, watchdog finds reports on a recently released HHS Office of Inspector General report,  2019: Vulnerabilities in Hospice Care.

The OIG report is actually two reports "which found that from 2012 through 2016, the majority of U.S. hospices that participated in Medicare had one or more deficiencies in the quality of care they provided to their patients. Some Medicare beneficiaries were seriously harmed when hospices provided poor care or failed to take action in cases of abuse. OIG made several recommendations in both reports to strengthen safeguards to protect Medicare hospice beneficiaries from harm and to ensure hospices are held accountable for deficiencies in their programs."

The first report, Hospice Deficiencies Pose Risks to Medicare Beneficiaries, 07-03-2019 | Report (OEI-02-17-00020), found that

[t]he most common types of deficiencies involve poor care planning, mismanagement of aide services, and inadequate assessments of beneficiaries. In addition to these, hospices had other deficiencies that also posed risks to beneficiaries. These failings-such as improperly vetting staff and inadequate quality control-can jeopardize beneficiaries' safety and lead to poor care. In addition, one-third of all hospices that provided care to Medicare beneficiaries had complaints filed against them. Over 300 hospices had at least one serious deficiency or at least one substantiated severe complaint in 2016, which we considered to be poor performers. These hospices represent 18 percent of all hospices surveyed nation-wide in 2016. Most poor performers had other deficiencies or substantiated complaints in the 5-year period. Some poor performers had a history of serious deficiencies.

The full report is available here.

The second report, Safeguards Must Be Strengthened To Protect Medicare Hospice Beneficiaries From Harm, 07-03-2019 | Report (OEI-02-17-00021) found

[s]ome instances of harm resulted from hospices providing poor care to beneficiaries and some resulted from abuse by caregivers or others and the hospice failing to take action. These cases reveal vulnerabilities in CMS's efforts to prevent and address harm. These vulnerabilities include insufficient reporting requirements for hospices, limited reporting requirements for surveyors, and barriers that beneficiaries and caregivers face in making complaints. Also, these hospices did not face serious consequences for the harm described in this report. Specifically, surveyors did not always cite immediate jeopardy in cases of significant beneficiary harm and hospices' plans of correction are not designed to address underlying issues. In addition, CMS cannot impose penalties, other than termination, to hold hospices accountable for harming beneficiaries.

The second full report is available here. In addition there is a slide show available on YouTube,  a one page flyer available here, a one-page graphic of the top issues available here, a flyer on beneficiary rights available here and more.

July 10, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Other | Permalink | Comments (0)

Monday, July 8, 2019

Two New Articles to Add to Your Reading List

Professor Tara Sklar emailed me to let me know of the publication of two new articles. Her first, Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention appears in 28 Annals of Health Law 195 (2019) and is also available on SSRN.

Here is the abstract

Over the last three decades, there has been a steady movement to increase access to aging in place as the preferred long-term care option across the country. Medicaid has largely led this effort through expansion of state waivers that provide Home and Community-Based Services (HCBS) as an alternative to nursing home care. HCBS include the provision of basic health services, personal care, and assistance with household tasks. At the time of this writing, seven states have explicitly tailored their waivers to support aging in place by offering HCBS solely for older adults, individuals aged 65 and over. However, there is growing concern about aging in place contributing to greater risk for social isolation, and with that increased exposure to elder abuse. Abuse, neglect, and unmet need are highly visible in an institutional setting and can be largely invisible in the home without preventative measures to safeguard against maltreatment. This article examines the seven states with Medicaid HCBS waivers that target older adults, over a 36-year period, starting with the first state in 1982 to 2018. We conducted qualitative analysis with each waiver to explore the presence of safeguards that address risk factors associated with elder abuse. We found three broad categories in caregiver selection, quality assurance, and the complaints process where there are notable variations. Drawing on these findings, we outline features where Medicaid HCBS waivers have the potential to mitigate risk of elder abuse to further support successful aging in place.

The second article, Elderly Gun Ownership and the Wave of State Red Flag Laws: An Unintended Consequence That Could Help Many will be published in the Elder Law Journal. It is currently available on SSRN here.

Here is the abstract

There is rising concern among health professionals and in legal circles to address gun ownership for older adults who display signs of cognitive decline, including dementia. However, elderly gun ownership remains underexamined, partly because incidents of gun violence among the elderly tend to occur in domestic settings and are much less visible than shootings in public areas. In contrast, there is widespread attention to curb mass gun violence through state legislation. Specifically, red flag laws, also known as Extreme Risk Protection Orders, have doubled in 2018 with thirteen states enacting red flag laws and over thirty states having introduced or planning to introduce this legislation. Although red flag laws were not intended to address elderly gun ownership, they uniquely apply where other gun control laws fall short, as red flag laws provide the legal process to temporarily remove access to guns for persons believed to be at an elevated risk of harming themselves or others.

This Article surveys the thirteen states that have enacted red flag laws and analyzes key legislative elements across these states. The state laws have notable variations, including authorized persons who can petition a court for a protection order, standard of proof requirements, and the length of time an order is in effect. These variations have implications for elderly gun owners and their families, particularly in how they relate to the climbing rates of cognitive decline, suicide in late life, and elder abuse. The current wave of red flag laws across the country offer an opportunity to provide greater awareness around elderly gun ownership and prevent crises from becoming tragedies.

I was particularly interested in this second piece, because we recently offered a webinar at Stetson for elder law attorneys on dementia and gun ownership.  Information about the webinar and how to order an audio download are available here.

Congrats Professor Sklar and thanks for letting us know about your articles!

July 8, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (1)