Sunday, November 6, 2022

Loss of the Ability to Evaluate Risk vs "Winning the Sweepstakes"

When I was a child, my grandfather had an ongoing relationship with Readers' Digest.  Not just their magazine or their condensed books, but with the company itself. He was always convinced he had won their latest sweepstakes and his big-dollar prize was just around the corner.  It was a bit of a family legend.  

Recently an older friend, who had celebrated a 90th birthday a few months back, called to ask for help in filling out forms for the Publishers Clearing House sweepstakes.  Over the years my friend had purchased various items from PCH, including a set of solar lights that never worked properly.   The odds of actually "winning" the PCH sweepstakes are astronomically high.  My friend thought buying something would increase the odds of winning no matter how often I explained over the years that was not true.  Sometimes new "stuff" would appear in the mail, along with a corresponding bill for the "order."  It was hard to know whether my friend had actually ordered the items.

This time, my friend was thrilled to explain the long-awaited victory was almost here -- as the latest mailing "guaranteed" the check would be arriving by mail and all that was needed was timely confirmation by return mail of a willingness to accept the prize.  Two envelopes were provided to help in "claiming" the victory.  

I walked patiently through the colorful documents with my friend, pointing out all my examples of clever language.   I showed my friend a copy of a case, Harris v.  Publishers Clearing House, an unofficially reported  federal decision from 2016, that described another person who also thought he had won for the exact same reasons as my friend. The prize never came. He was suing -- without the benefit of an attorney --  for breach of contract, fraud, and alleged violations of Deceptive Mail Prevention and Enforcement Act, 39 U.S.C. Section 2001 et seq.  But the judge ruled against him, dismissing the case with prejudice while explaining the language in the letters "merely informed the plaintiff that he had a chance to win. . . . "  

My friend seemed to understand what I was saying.  My friend asked my opinion -- "what should we do?"  I suggested we tear up the letters and throw them in the trash.  My friend put the documents -- untorn -- in the waste can.  We talked about the fact that continuing to participate with this company was wasting money, and was also an example of "feeding the troll," encouraging the company to keep sending those "too-good-to-be-true" letters to other people.   We  ended our discussion with a good hug.

The next morning I stopped by to drop off newspapers and a fresh donut.  As I waited for my friend, I saw the top of two "official" envelopes addressed to Publishers Clearing House peeking out of the top of the home's mail box for pick up -- with fresh stamps.   I couldn't help but sigh.  

Here is a link to a science-based discussion about early assessment of cognitive impairment, and the importance of histories provided by a reliable informant or care partner for diagnostic assessment.  Victimization in scams is one of several behavioral examples listed in the article that can point to changes in cognition, associated with the loss of the ability to evaluate risk or odds of winning. 

Isn't it sad that it might be easier to diagnose cognitive impairment than to get a ruling finding deceptive trade practices?  

November 6, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 5, 2022

Justice Department Expands Strike Force to Protect Older Americans from Fraud

The U.S. Justice Department issued a press release yesterday, announcing the expansion of its Transnational Elder Fraud Strike Force.  The Strike Force was organized in 2019, involving the Justice Department's Consumer Protection Bureau,  U.S. Attorneys Offices, the FBI, Homeland Security, and -- I was interested to see -- the United States Postal Inspection Service

I've actually worked with the Postal Inspector on an elder fraud case.   A woman in her 90s was mailing an unusually fat envelope and asked a friend to give her a ride to a local branch of the post office.  The friend, knowing the woman was quite frail when walking unassisted, offered to get the postage, or to accompany her, but the older woman, who the friend thought seemed unsure of herself, declined.  The friend thought about this, was alerted by what struck her as unusual behavior, and called the woman's daughter and explained what had just  happened. 

The daughter had dismissed a home caregiver recently after learning the caregiver was asking her mother for -- and receiving --  two  or more "pay checks" per week, as well as asking for additional cash that seemed to disappear in mysterious ways.  The daughter went to the post office with a copy of a certified Power of Attorney, granted to her by her mother several years before she was diagnosed with multiple conditions, including cognitive issues, following a stroke.  In fact the reason the caregiver had been hired was precisely because the mother was vulnerable and sometimes confused. 

The Post Office at first seemed to be reluctant to take action, but the daughter was able to describe the envelope and also to provide the name of the former employee who had already been fully paid for his work, and had signed a receipt to that effect. The Post Office's worker agreed to search, but when the daughter departed, it seemed unlikely any action would be taken.  That is, it seemed unlikely until the next day, when a representative of the Postal Inspector set up an appointment.  Having identified and been given the daughter/agent's permission to open the envelope, the federal authorities found several hundred dollars in the envelope that was, indeed, addressed to the former worker.  The officers interviewed the mother and then went to see the suspect, who claimed it was merely an additional paycheck that was "owed."  He  claimed the mother was fully supportive of giving him cash, but he was unable to explain the receipt he'd signed, the burner phones he had used to call the woman, nor the many "payments" he'd received in the last 60 days, payments that the daughter had since documented as more than tripling his agreed wage rate during that period. 

I'm the daughter; my 90+ mother was the person defrauded.  (She has since passed away, so I feel more able to tell this story.)  I learned the Postal Service already understood such a fact pattern very well.  Even at that time, several years ago, the official investigating the facts told us that similar transactions happened all too often.  It is good to see, with this latest press release, that the U.S. Justice Department is coordinating authorities on enhanced fraud prevention and recovery efforts in support of elder justice.  

My thanks to Associate Dean for Academic Affairs Amy Gaudion at Penn State Dickinson Law, who shared the Justice Department notice with me, and whose own research focuses on national security and privacy issues.  

October 5, 2022 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 22, 2022

Some Critical Access Hospitals Overpaid by Medicare?

And another report from the HHS Office of Inspector General,  Medicare Part B Overpaid and Beneficiaries Incurred Cost-Share Overcharges of Over $1 Million for the Same Professional Services.  Here is their findings:

Not all Medicare Part B payments made to CAHs for professional services and payments made to health care practitioners complied with Federal requirements. For the 40,026 claims we audited, CAHs and health care practitioners each submitted an equal number of claims. However, for each date of service, only one of the claims complied with Federal requirements. As a result, Medicare administrative contractors (MACs) paid providers $907,438 more than they should have been paid, and beneficiaries were held responsible for $281,321 more than they should have been.

These overpayments occurred because CMS did not have claim system edits to prevent and detect duplicate professional services claims for the same date of service, beneficiary, and procedure.

The full report with comments and recommendations is available here.

September 22, 2022 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Certain SNF non-compliance on infection control and more?

The Office of the Inspector General for HHS has released a report,  Certain Life Care Nursing Homes May Not Have Complied With Federal Requirements for Infection Prevention and Control and Emergency Preparedness.

Here is a summary of their findings

Selected Life Care nursing homes may not have complied with Federal requirements for infection prevention and control and emergency preparedness. Specifically, 23 of the 24 nursing homes selected had possible deficiencies. Actual deficiencies can only be determined following a thorough investigation by trained surveyors. At 22 nursing homes, we found 35 instances of possible noncompliance with infection prevention and control requirements related to annual reviews of the Infection Prevention and Control Program, training, designation of a qualified infection preventionist, and Quality Assessment and Assurance Committee meetings. We also found at 16 nursing homes 20 instances of possible noncompliance with emergency preparedness requirements related to the annual review of emergency preparedness plans and annual emergency preparedness risk assessments. Life Care officials attributed the possible noncompliance to: (1) leadership turnover, (2) staff turnover, (3) documentation issues (i.e., information was not documented or documentation was either lost or misplaced), (4) staff members who were unfamiliar with requirements (i.e., requirements stipulating that there is no grace period for infection preventionists to complete specialized training and that emergency preparedness plans needed to be reviewed annually), (5) qualified personnel shortage, and (6) challenges related to the COVID-19 public health emergency. We also believe that many of the conditions noted in our report occurred because CMS did not provide nursing homes with communication and training related to complying with the new, phase 3 infection control requirements, or clarification about the essential components to be integrated in the nursing homes’ emergency plans. 

The full report with recommendations is available here.

September 22, 2022 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, September 21, 2022

Practice Tip for Older Student Loan Debtors

The National Center on  Law & Elder Rights has released a new practice tip, Cancellation of Debt & Other Changes to the Federal Student Loan System that Impact Older Borrowers.

Student loan debt is one of the biggest contributors to the rise in the amount of debt held by older adults. According to AARP, in 2020 8.4 million borrowers age 50 and older held 22% of the total federal student debt load, amounting to $336.1 billion. The average amount of student loan debt carried by families headed by adults 50 or older was $36,421 in 2019. This includes older borrowers who took out loans for their own education or to pay for a family member’s education. Default on student loans can result in aggressive collection actions, including the garnishment of wages and Social Security benefits, and an accumulation of fees and interest. Older adults consistently report difficulty managing their student loan debt while trying to stay on track to save for retirement or pay for other necessary expenses on reduced retirement incomes. This results in financial instability, especially for low-income older adults and those on f ixed-incomes.

The practice tip includes discussion of the moratorium on student loan collections, debt cancellation, public service loan foregiveness, changes under discussion for income-based repayment plans, and links to helpful resources. 

September 21, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Tuesday, September 13, 2022

The Myriad Benefits Available to Older Persons

Kaiser Health News published a recent article that focused on the various programs and benefits for older persons that they may not know about.  While Inflation Takes a Toll on Seniors, Billions of Dollars in Benefits Go Unused offers these examples to make the point:

A few examples: Nearly 14 million adults age 60 or older qualify for aid from the federal Supplemental Nutrition Assistance Program (also known as food stamps) but haven’t signed up, according to recent estimates. Also, more than 3 million adults 65 or older are eligible but not enrolled in Medicare Savings Programs, which pay for Medicare premiums and cost sharing. And 30% to 45% of seniors may be missing out on help from the Medicare Part D Low-Income Subsidy program, which covers plan premiums and cost sharing and lowers the cost of prescription drugs.

And yes, the article acknowledges that for many programs, eligibility is based on a means test, while for others, it's just a priority.  The article offers tips to find out if an older person is eligible for any of these programs, starting with the local Area Agency on Aging.

September 13, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other | Permalink | Comments (0)

Monday, September 12, 2022

Saving an Arm & a Leg on Drug Costs

Kaiser Health News released a podcast yesterday about the new law for CMS to negotiate drug prices under Medicare. ‘An Arm and a Leg’: The New Cap on Medicare Drug Costs explains "[t]he U.S. Senate was voting on the Inflation Reduction Act, which among other things is designed to ensure that people on Medicare pay less for expensive drugs....It’s a big deal. Lots of seniors pay $10,000 a year or more for drugs or do without lifesaving treatment; once the new law kicks in, it sets an out-of-pocket limit of $2,000 a year. "

The link to the 26 minute podcast is available here.  A transcript of the podcast is available here.

September 12, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Thursday, September 8, 2022

Consumer Financial Protection Bureau and CMS Jointly Caution Nursing Homes and Their Debt Collectors on Their Practices

Today, my Conflict of Laws class and I watched a live-streamed hearing involving "choice of law": "state" (about contracts) versus "federal law" (prohibiting practices affecting contracts)  The context is a bit dramatic and definitely overdue for action. Dickinson Law Class Observes Federal Hearing on Propriety of Nursing Home Debt Collection Practices

On the same day as the public hearing, which was hosted by the Consumer Financial Protection Bureau (CFPB) for panelists to identify concerns about certain debt collection practices used by nursing homes against the family members and others, CFPB and the federal Centers for Medicare and Medicaid Services (CMS) issued a "notification letter."  The letter, dated September 8, 2022 and addressed to "Nursing Facilities and Debt Collectors," details improper practices under federal law, such as asking "third parties" to sign documents that, in effect, serve as  personal guarantees of payment of nursing homes.  Without those guarantees, the nursing home may deny admission or continued care.  However, the third parties are often family members or even mere "friends," who may be trying to help get care, but who have little knowledge of the resident's personal finances or eligibility for Medicare or Medicaid, and who may not understand the risks of "agreeing" to sign the contracts.  

I began writing about this problem years ago in a series of articles.  In "The Responsible Thing to Do About Responsible Party Provisions in Nursing Home Agreements," I focused on misleading attempts to have someone agree to be a "responsible party" for purposes of the resident being admitted, without the signer's full understanding that the signature may be construed by state courts as a promise to pay if the resident cannot pay personally or does not qualify for Medicare or Medicaid payments.  See also "Traps for the Unwary in Nursing Home Agreements."

Recent studies conducted under the auspices of Kaiser Family Foundation (at KHN) provide additional examples of the hardships on families and friends. Unfortunately, the problems with attempts to hold third-parties liable for costs of nursing home care have become more intense with Covid-19 crises affecting long-term care.  Indeed, one of the pandemic-influenced contracting practices that adds to the problem is use of "on-line signing processes" for these contracts.  As family members were often not even present during the admission's process, nursing homes are increasingly turning to e-signatures. The swift moving electronic process for initials and virtual signatures all too easily flies by without any true reading, much less understanding, of the documents and with close to zero likelihood the signers will be able to ask questions (such as "Do I have to sign this?" or "What happens if I don't sign this?") and gain accurate answers.  Nursing homes deserve to be paid for their care -- but the right way to do this is to involve people who can help the families apply for benefits under Medicare or Medicaid, and who won't insist on private pay if the resident's resources are too low to support such pay.   

In my experience, thoughtfully-managed, well-run nursing homes definitely exist.  They get sound business and legal advice and know that is more cost effective to help families through the process than sue them when the documents are not understood.  Experienced elder law attorneys, including specialists in Legal Services offices, can help too.  But while reading the KHN report linked above, too often I was seeing "default judgments" involved here -- and in those instances, that usually means a lack of informed agreement on the part of signers or that the admission processes are otherwise not working properly.   

September 8, 2022 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0)

Thursday, September 1, 2022

Planning for Your Special Needs Child and Retirement

The New York Times ran this article last week. Planning for Your Retirement, and for a Child’s Special Needs, All at Onceexplains "[f]or parents of children who have serious disabilities or special needs, the challenges of growing and preserving their wealth are magnified exponentially, and the stakes are much higher. While they are trying to plan for their own retirements, these parents need to simultaneously secure the ‌ stability of a son or daughter who will be dependent on them‌ until — and even  after — their deaths." The article does a good job of framing and discussing the issues and options and provides good examples.

September 1, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Retirement | Permalink | Comments (0)

Wednesday, August 31, 2022

CFPB Hearing On Nursing Home Debt Collection Practices

Consumer Financial Protection Bureau has announced a Save the Date: CFPB Field Hearing with Director Chopra on Nursing Home Debt Collection Practices

On September 8, 2022, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra will host a virtual discussion with advocates, service providers, community leaders, and members of the public to explore challenges around nursing home debt collection practices and the impact they can have on the financial wellbeing of caregivers, their families, and friends. We are looking forward to your participation, so please be sure to save the date.

To register, click here

August 31, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, August 30, 2022

When Private Equity Owns Nursing Homes

Last week the New Yorker newsletter ran this article, When Private Equity Takes Over a Nursing Home. Focusing on the sale of one nursing home, the article discusses the facility before the sale and after.

Nearly a quarter of the hundred-person staff had been with the home for more than fifteen years; the activities director was in her forty-fifth year. But the ownership change precipitated a mass exodus. Within two weeks, management laid out plans to significantly cut back nurse staffing. Some mornings, there were only two nursing aides working at the seventy-two-bed facility. A nurse at the home, who spoke on condition of anonymity for fear of retribution, told me, “It takes two people just to take some residents to the bathroom.” ,

Consider the prevalence of private equity's ownership of nursing homes. According to the article, "Since the turn of the century, private-equity investment in nursing homes has grown from five billion to a hundred billion dollars. The purpose of such investments—their so-called value proposition—is to increase efficiency. Management and administrative services can be centralized, and excess costs and staffing trimmed."  Further, "Private-equity firms currently own only eleven per cent of facilities, as a federal report found. But about seventy per cent of the industry is now run for profit."

This is an important article. 

August 30, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, August 23, 2022

Air Travel When Using A Wheelchair

Did you see this article in the New York Times a couple of weeks ago?  Embarrassing, Uncomfortable and Risky: What Flying is Like for Passengers Who Use Wheelchairs is compelling and enlightening and makes the reader wonder if there isn't room for a lot of improvements from airlines and airports for these passengers.  If you haven't read it, you really must.  There is an audio version of the article also available at the same website, but the accompanying photos are also quite compelling. Follow the passenger in the story on his journey from arrival at the airport to arrival at his destination. 

August 23, 2022 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Travel | Permalink | Comments (0)

Sunday, August 21, 2022

Hearing Loss, Cataracts, and Dementia

There seem to be a lot of articles in the media currently discussing the statistical relationship between hearing loss and dementia.  Of course, we need to remember the axiom that "correlation does not necessarily mean causation."  Still, recent studies and informed observations are intriguing.  For example one study underway is looking at whether treating hearing loss can reduce the risk of cognitive decline.  

Johns Hopkins is leading a large National Institute on Aging study to see if hearing aids can safeguard seniors’ mental processes. The study has multiple locations and has recruited nearly 1,000 people ages 70–84 with hearing loss. One group is provided hearing aids, while another group receives aging education. By early 2023, the study should provide definitive results on whether treating hearing loss will reduce the risk of cognitive decline. In essence, we’ll know whether the use of hearing aids can potentially reduce brain aging and the risk of dementia.

Some of this research is going beyond examining the potential for common causes for the two processes (such as poor diet and inadequate exercise, as well as uncontrolled blood pressure or weight).  Researchers are asking whether a failure to hear clearly can actually damage the brain's function.  NPR's Sunday Edition (8.21.2022) includes  a five minute interview with Dr. Frank Lin, at John Hopkins Bloomberg School of Public Health, who addresses three "major brain mechanisms" that may be affected by untreated hearing impairments: (1) the potential impact of the load on a brain from having to work harder; (2) the potential for hearing loss to actually affect the integrity of the brain's structure  because of atrophy of an essential function, and (3) the potential for loss of hearing to contribute to social isolation, further reducing engagement that keeps people (and their brains) interacting with the world around them. 

Dr. Lin is also pleased about the FDA finally opening access for Americans to purchase over-the-counter hearing aids, a change he's worked on and supported for some eight years.  He points out that currently only some 15 to 20% of Americans who could benefit from hearing assistance are getting the help they need, probably because of high costs and reluctance to see doctors. Dr. Lin says that any theoretical risks from over-the-counter sales (such as over- or under-amplification) is significantly outweighed by the benefits. 

Oh, and while I'm at this, the research suggesting that older people who have cataracts removed may be "nearly 30% less likely to develop dementia" is also interesting.

August 21, 2022 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Hearing Loss, Cataracts, and Dementia

There seem to be a lot of articles in the media currently discussing the statistical relationship between hearing loss and dementia.  Of course, we need to remember the axiom that "correlation does not necessarily mean causation."  Still, recent studies and informed observations are intriguing.  For example one study underway is looking at whether treating hearing loss can reduce the risk of cognitive decline.  

Johns Hopkins is leading a large National Institute on Aging study to see if hearing aids can safeguard seniors’ mental processes. The study has multiple locations and has recruited nearly 1,000 people ages 70–84 with hearing loss. One group is provided hearing aids, while another group receives aging education. By early 2023, the study should provide definitive results on whether treating hearing loss will reduce the risk of cognitive decline. In essence, we’ll know whether the use of hearing aids can potentially reduce brain aging and the risk of dementia.

Some of this research is going beyond examining the potential for common causes for the two processes (such as poor diet and inadequate exercise, as well as uncontrolled blood pressure or weight).  Researchers are asking whether a failure to hear clearly can actually damage the brain's function.  NPR's Sunday Edition (8.21.2022) includes  a five minute interview with Dr. Frank Lin, at John Hopkins Bloomberg School of Public Health, who addresses three "major brain mechanisms" that may be affected by untreated hearing impairments: (1) the potential impact of the load on a brain from having to work harder; (2) the potential for hearing loss to actually affect the integrity of the brain's structure  because of atrophy of an essential function, and (3) the potential for loss of hearing to contribute to social isolation, further reducing engagement that keeps people (and their brains) interacting with the world around them. 

Dr. Lin is also pleased about the FDA finally opening access for Americans to purchase over-the-counter hearing aids, a change he's worked on and supported for some eight years.  He points out that currently only some 15 to 20% of Americans who could benefit from hearing assistance are getting the help they need, probably because of high costs and reluctance to see doctors. Dr. Lin says that any theoretical risks from over-the-counter sales (such as over- or under-amplification) is significantly outweighed by the benefits. 

Oh, and while I'm at this, the research suggesting that older people who have cataracts removed may be "nearly 30% less likely to develop dementia" is also interesting.

August 21, 2022 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Tuesday, August 16, 2022

Can We Hear You Now? FDA Gives Final Approval for Over-the-Counter Hearing Aid Sales

The Food and Drug Administration issued its final ruling today permitting over-the-counter sales of certain types of hearing aids. The ruling takes effect in 60 days. As FDA explains:

This action establishes a new category of over-the-counter (OTC) hearing aids, enabling consumers with perceived mild to moderate hearing impairment to purchase hearing aids directly from stores or online retailers without the need for a medical exam, prescription or a fitting adjustment by an audiologist. 

 

The rule is expected to lower the cost of hearings aids, furthering the Biden-Harris Administration’s goal of expanding access to high-quality health care and lowering health care costs for the American public. It is designed to assure the safety and effectiveness of OTC hearing aids, while fostering innovation and competition in the hearing aid technology marketplace. . . . 

 

Concurrently with issuing the final rule, the FDA also issued the final guidance, Regulatory Requirements for Hearing Aid Devices and Personal Sound Amplification Products (PSAPs), to clarify the differences between hearing aids, which are medical devices, and PSAPs, consumer products that help people with normal hearing amplify sounds.  

This could be "huge" for helping older adults.  I know that for many adults, not just the older adults I've worked with, it is terribly frustrating to be unable to hear properly.  Plus, I think that for some people, the ability to "try" a wider range of devices, without the time and expense of visiting specialized doctors, may facilitate "realism."   

At the same time, I worry that for some older adults, who actually are willing to see their hearing aid doctor, sometimes it was this doctor or specialist who caught the "real" problems, including the potential for mild cognitive impairment.  Could we miss those opportunities for more holistic health evaluations? 

 

August 16, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Sunday, August 14, 2022

Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

  1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
  2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id. 

August 14, 2022 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Monday, August 8, 2022

Private Equity in the Business of Hospice?

Kaiser Health News a couple of weeks ago ran an article, Hospices Have Become Big Business for Private Equity Firms, Raising Concerns About End-of-Life Care.  "Hospice care, once provided primarily by nonprofit agencies, has seen a remarkable shift over the past decade, with more than two-thirds of hospices nationwide now operating as for-profit entities. The ability to turn a quick profit in caring for people in their last days of life is attracting a new breed of hospice owners: private equity firms."  Check this out: "According to a 2021 analysis, the number of hospice agencies owned by private equity firms soared from 106 of a total of 3,162 hospices in 2011 to 409 of the 5,615 hospices operating in 2019. Over that time, 72% of hospices acquired by private equity were nonprofits. And those trends have only accelerated into 2022."  

The article explores concerns expressed regarding private equity firms owning hospices, including quality of care and profit margins. It also discusses for-profit vs. non-profit hospices.  Check it out!

August 8, 2022 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink

Friday, July 29, 2022

CMS Actions to Improve SNF Resident Quality of Life and Care

Last month, CMS issued an advisory that it had "Issue[d] Significant Updates to Improve the Safety and Quality Care for Long-Term Care Residents and Call[ed] for Reducing Room Crowding."

[CMS] issued updates to guidance on minimum health and safety standards that Long-Term Care (LTC) facilities ... must meet to participate in Medicare and Medicaid. CMS also updated and developed new guidance in the State Operations Manual (SOM) to address issues that significantly affect residents of LTC facilities. The surveyors who use these resources to perform both routine and complaint-based inspections of nursing homes are responsible for determining whether facilities are complying with CMS’ requirements.

A fact sheet on the updated guidance, also released last month, is available here.

July 29, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, July 28, 2022

No Arbitration Where Care Center Resident Blind, Medicated, and In Pain, Plus More

The Insurance Journal ran this article recently, Nursing Home Denied ‘Unconscionable’ Arbitration Where Patient Was Blind, Alone. The arbitration agreement in question was "to settle e a family’s wrongful death complaint where the arbitration papers had been signed by the deceased woman when she was blind, on medication and in severe pain."  It wasn't just that, though for which "[t]he Pennsylvania Superior Court ... upheld a trial court in finding that the arbitration agreement was 'unconscionable....'"   In addition, the resident "was alone when she was asked to sign the arbitration agreement, ... was not given a chance to read it and other admission documents before signing, ... was not given a copy of the agreement after she signed, even though it permitted her to rescind within 10 days, and the ... admissions director did not read or explain all of the arbitration agreement’s provisions."

Thanks to Morris Klein for sending me the article.

July 28, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Wednesday, July 27, 2022

Tampa Bay Area SNF Closes After Medicare Loss

My local paper, the Tampa Bay Times, reported a story, A Florida nursing home lost its Medicare benefits. Residents lost a home. The article covers the impact on residents being forced to locate, the corporate structure of the SNF, and various issues regarding resident care.  The article notes that "[the nursing home ...  became the latest in Florida formerly affiliated with Consulate Health Care to lose its federal benefits since May because of poor patient care. The federal government considers termination of Medicare and Medicaid a “last resort,” implemented only after “all other attempts” fail to resolve health and safety deficiencies."  The full article is available here.

July 27, 2022 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)