Elder Law Prof Blog

HHS Inspector General Report on MA Plans

The Inspector General of HHS recently released this report,  Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns About Beneficiary Access to Medically Necessary Care.

Here's the OIG explanation why they did the study:

A central concern about the capitated payment model used in Medicare Advantage is the potential incentive for Medicare Advantage Organizations (MAOs) to deny beneficiary access to services and deny payments to providers in an attempt to increase profits. Although MAOs approve the vast majority of requests for services and payment, they issue millions of denials each year, and CMS annual audits of MAOs have highlighted widespread and persistent problems related to inappropriate denials of services and payment. As Medicare Advantage enrollment continues to grow, MAOs play an increasingly critical role in ensuring that Medicare beneficiaries have access to medically necessary covered services and that providers are reimbursed appropriately.

What the OIG found shows that "MAOs sometimes delayed or denied Medicare Advantage beneficiaries' access to services, even though the requests met Medicare coverage rules. MAOs also denied payments to providers for some services that met both Medicare coverage rules and MAO billing rules." They also found that 13% of denied prior authorizations met the coverage rules and that additionally some denials were made based on lack of documentation but OIG found sufficient documentation had been provided. 18% of payment request denials met the Medicare coverage rules.

Here are their recommendations

Our findings about the causes and circumstances under which MAOs denied prior authorization or payment for requests that met Medicare coverage and MAO billing rules provide an opportunity for improvement to ensure that Medicare Advantage beneficiaries have timely access to all necessary health care services, and that providers are paid appropriately. Therefore, we recommend that CMS:

• issue new guidance on the appropriate use of MAO clinical criteria in medical necessity reviews;

• update its audit protocols to address the issues identified in this report, such as MAO use of clinical criteria and/or examining particular service types; and

• direct MAOs to take additional steps to identify and address vulnerabilities that can lead to manual review errors and system errors.

The full report is available here.

ACL New Fact Sheet When Public Health Emergency Expires

The Administration for Community Living has released a new fact sheet on what will happen to elders and Medicaid when the public health emergency expires. This fact sheet includes 5 things 

1. Medicaid beneficiaries should make sure their Medicaid agency has their current contact information. They should check their mail and be sure to mail back any Medicaid forms they receive.
2. All renewal forms and notices must be accessible to people with limited English proficiency and people with disabilities.
3. Many people who are no longer eligible for Medicaid will have other coverage options.
4. If someone is disenrolled or their Medicaid coverage changes and they disagree with their state Medicaid agency’s decision, they can appeal.
5. The end of the Public Health Emergency may lead to an increase in utilization of services provided by Older Americans Act programs, Centers for Independent Living, Assistive Technology Act programs, and other ACL grantees.

The fact sheet contains useful explanations and is available for download.

Filial Friday: Virginia Governor Blocks Attempt to Repeal Virginia Filial Support Law

As is true with several U.S. states, Virginia has a filial support statute that can obligate adult children to support their parents.  The key language of VA Code Ann. Section 20-88 provides:

It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances. 

 

If there be more than one person bound to support the same parent or parents, the persons so bound to support shall jointly and severally share equitably in the discharge of such duty. . . .

 

This section shall not apply if there is substantial evidence of desertion, neglect, abuse or willful failure to support any such child by the father or mother, as the case may be, prior to the child's emancipation or, except as provided hereafter in this section, if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program. . . . 

There are few modern cases applying this law. In Peyton v. Peyton, an "unreported" Virginia chancery court decision from 40 years ago, the court applies the law to obligate one brother to reimburse another brother $8,000, representing half of the past out-of-pocket expenses for their mother's care in a nursing home. A careful reading of the Peyton case reveals one of the challenges of applying filial support laws when used to collect "back" expenses; here the second son was willing to pay a portion of their mother's monthly costs going forward but he was not successful in arguing a statute of limitations should apply to prevent liability for multiple years of back claims. 

As with other American states that have had forms of filial support laws, Virginia's law was enacted as an alternative to public welfare laws because the common law generally found no legal duty for adult children to support indigent parents.  But, in Virginia, again as in most American states, the filial support laws are largely dormant, misunderstood or ignored, especially after Social Security, Medicare, and Medicaid laws were enacted on a federal level beginning in the 1960s.  

Virginia's  statute was amended decades ago to restrict use of the law by the state to seek reimbursement for its costs in providing public services (such as "medical assistance" a/k/a Medicaid).  However, unlike the filial laws of most states, Virginia's law permits criminal prosecution as a misdemeanor for "any person violating the provisions of an order" of support under this statute, with a fine not exceeding $500 or imprisonment in jail for up to 12 months.  I find no reported cases of criminal enforcement actions.

Recognizing that other states (including neighboring Maryland in 2017) had recently taken formal action to repeal filial support laws as outdated or impractical, Virginia Senator Adam Ebbin introduced 2022 Senate Bill 389 to repeal Virginia's law. Senator Ebbin's bill passed with no dissenting votes in the Virginia Senate.  The final vote in the Virginia House, on March 11, 2022, supported repeal with 81 voting in favor, and only 16 members voting in opposition to repeal. In other words, repeal was not a controversial measure; rather it appeared to be part of an attempt to clean-up hoary laws, and it attracted strong bipartisan support.

Nonetheless, Virginia Governor Glenn Youngkin (sworn into office in January 2022) vetoed the repeal on April 11, 2022.  His reasoning for preserving filial support laws is unique, at least in my 20-some years of experience researching filial support laws (see e.g., Filial Support Laws in the Modern Era: Domestic and International and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder Law Journal 269 (2013)).  

The governor's veto statement explains:

"Primarily, the Commonwealth's filial responsibility law supports those who care for their elderly parents.  In establishing a bankruptcy budget, the court allows for necessary and reasonable expenditures and the repeal of Section 20-88 could prevent an individual from covering these expenses within the budget of their debtor.  For those undergoing bankruptcy proceedings, there is a grave risk of unforeseeable and unintended consequences, which may harm people going through some of the most difficult times in their lives."

On the one hand, in today's torn asunder political scene, no one should be surprised that a newly elected governor of one party would be vetoing legislation sponsored by a member of the other party -- and that is true here, with a Republican governor vetoing a bill proposed by a Democrat.  

But what about the proffered reason for the veto?  Virginia's law does not "primarily" support those who care for their elderly parents.  Rather, it creates an obligation for adult children. Is there any precedent for a theory that Virginia's filial support law permits some type of sheltering of assets for a debtor in bankruptcy court, to provide a means of financial support for the (also) destitute parent?  Certainly I find no modern cases on Lexis or Westlaw suggesting such use or even a need for such use.  

There is a reported case from 1938 in Virginia.  In Mitchell-Powers Hardware Co. v. Eaton, 198 S.E. 496 (Supreme Court of Appeals, VA 1938), the court addressed a question of whether a transfer of valuable stock by a debtor to his sister was voidable as an invalid gift.  Was this an invalid attempt to defeat a legitimate creditor's lien against the asset? The court recognized that under Virginia's predecessor version of Statute 20-88, the debtor "could" have an obligation to assist his sister in the care of their elderly mother. The appellate court remanded the case for a jury determination of whether the mother was actually destitute and in need of the son's financial support. (The sister had further transferred the stock in question onward to the debtor's son).  This hardly seems a persuasive case for characterizing filial support laws as necessary "support for those who care for their elderly parents."

SNF Medicare Funding Proposal

On April 11, CMS announced it was proposing a decrease in Medicare funding to SNFs, according to an article in Skilled Nursing News. CMS’s Proposed $320M Decrease in Nursing Home Medicare Funding Could Be ‘Ruinous’ for Struggling Operators

The federal government on Monday proposed its payment rate update to nursing home reimbursements for fiscal 2023, which includes a 4.6% cut related to the Patient-Driven Payment Model.

That cut from the Centers for Medicare & Medicaid Services (CMS) amounts to a total loss of $320 million, according to the agency.

CMS – in its SNF Prospective Payment System proposed rule – recommended a 3.9%, or $1.4 billion, payment increase to the industry. The government agency arrived at that number by raising the market basket rate for skilled nursing facilities by 2.8%, a 1.5 percentage point forecast error adjustment and a 0.4-percentage-point multifactor productivity adjustment.

The article goes into detail about the CMS position, what is driving it and the impact it would have on the industry.  The CMS release about their proposal and the comment period is available here: Fiscal Year (FY) 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule (CMS 1765-P).

The Skilled Nursing News article also notes that CMS is looking for feedback on the issue of staffing standards. For more info on the staffing standards, see the CMS news release, HHS Takes Actions to Promote Safety and Quality in Nursing Homes.

 

Reverse Mortgage May Not Be A Last Resort Any Longer

Professor Naomi Cahn sent me the link to this recent article in the New York Times, Reverse Mortgages Are No Longer Just for Homeowners Short on Cash. "Until recently, it was conventional wisdom that a reverse mortgage was a last-resort option for the oldest homeowners who desperately needed cash. But a growing number of researchers say these loans could be a good option for people earlier in their retirement like [those]  who are not needy at all."

The article offers the basics about reverse mortgages and offers some insights into the thinking about greater utility of reverse mortgages:

Homeowners in their 60s and early 70s could use cash from a reverse mortgage to protect investment portfolios during market downturns, to delay claiming Social Security benefits or to pay large medical bills.

“The best use of this tool is to provide and supplement income during retirement,” said ... the director of the financial planning program at the University of Illinois, Urbana-Champaign. “A younger retiree can stay in the house while turning equity into an income stream.” 

The article discusses downsides for folks to consider as well.  Read it!

 

 

AARP BankSafe Initiative Training for Retail

AARP has launched a new initiative to fight gift card scams. This is a super important project!  According to the website, 

With gift card fraud, a scammer may pretend to be someone they are not in an attempt to convince the unsuspecting person to pay them in gift cards. This type of scam can take many forms: • The scammer, claiming to be from “tech support,” says there is something wrong with a person’s computer, and that the person will need to pay in gift cards in order for tech support to fix the problem. • Posing as a user of a dating site, the scammer says they have an emergency and need another site user to help them by buying them gift cards. • Through a phone call the scammer pretends to be a relative in trouble who needs their target to send them gift cards. • Claiming to be from the IRS or Social Security, the scammer states that the person has a fine or owes back taxes that can only be paid by gift card. • The scammer impersonates the target’s utility company and threatens to shut off service unless they pay an overdue bill with gift cards.

More information about the scam and the training of retail employees is available here.

Important Report on Nursing Homes from the National Academies

I've been a bit behind on posting and although this report was released 8 days ago, I wanted to be sure readers were aware of it. The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff was released by the National Academies on Sciences, Engineering, and Medicine. Here is the description

Nursing homes play a unique dual role in the long-term care continuum, serving as a place where people receive needed health care and a place they call home. Ineffective responses to the complex challenges of nursing home care have resulted in a system that often fails to ensure the well-being and safety of nursing home residents. The devastating impact of the COVID-19 pandemic on nursing home residents and staff has renewed attention to the long-standing weaknesses that impede the provision of high-quality nursing home care.

With support from a coalition of sponsors, the National Academies of Sciences, Engineering, and Medicine formed the Committee on the Quality of Care in Nursing Homes to examine how the United States delivers, finances, regulates, and measures the quality of nursing home care. The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff identifies seven broad goals and supporting recommendations which provide the overarching framework for a comprehensive approach to improving the quality of care in nursing homes.

You can download the report as pdf or read it online for no charge. You can buy a hard copy from this link.

Thanks to Morris Klein for alerting me to the release of this report.

Bill Introduced to Repeal Medicaid Estate Recovery

A bill, Stop Unfair Medicaid Recoveries Act, has been introduced in Congress to repeal Medicaid Estate Recovery and to limit liens.  The bill, HR 6698 addresses the elimination of estate recovery this way:

“(6) Notwithstanding any preceding provision of this subsection, no adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be initiated, maintained, or collected on or after the date of the enactment of this paragraph. Not later than 90 days after such date, a State shall withdraw any lien in effect as of such date with respect to such medical assistance correctly paid.”

The full text is available here.  Information about the bill, including the sponsor and co-sponsors, is available here. Thanks to attorney Jim Schuster for alerting us to this legislation.

The Fading Possibility of Aging At Home

We have blogged several times in the past about the desire of folks to age in place, and separately, the declining availability of home care workers.  Those two issues have now merged in a recent guest essay in the New York Times,  Many of Us Want to Age at Home. But That Option Is Fading Fast. "By 2040, the population of American adults aged 65 and older will nearly double, and that of adults aged 85 and older is expected to quadruple over the same period. As our aging population grows, the need for home care is increasing. Yet in New York, as in much of the rest of the country, there are too few workers."  The article looks at various reasons for the lack of home care workers, various reports on the issue, and proposed legislative solutions.  The essay concludes with this reminder: "[w]hether we are growing older, recovering from surgery or living with a disability and need help with things like making meals, transportation to and from appointments and running errands, most Americans will need home care at some point. Let’s make sure when the time comes, the work force is ready."

Thanks to my friend and colleague, Professor Mark Bauer, for sending me the link to this essay.

DOJ Found Colorado Violated the ADA

On March 3, 2022, DOJ announced "that Colorado unnecessarily segregates people with physical disabilities in nursing facilities, in violation of the Americans with Disabilities Act (ADA) and the Supreme Court’s decision in Olmstead v. L.C. The department’s findings, detailed in a letter to Colorado Governor Jared Polis, follow a thorough and multi-year investigation into the state’s system of care for people with physical disabilities." 

"We have concluded that the State is failing to serve individuals with physical disabilities in the most integrated setting appropriate to their needs. Unnecessary institutionalization is common in Colorado despite several programs to help adults with physical disabilities remain in, or transition back to, their own homes and communities." The press release containing the announcement is available here. The letter to the Colorado Governor is available here. 

No More Emergency, No More Medicaid?

Elder Law Attorney and frequent blog reader Morris Klein (thank you Morris) sent me the link to a recent article in the Washington Post, Millions of vulnerable Americans likely to fall off Medicaid once the federal public health emergency ends.

As many as 16 million low-income Americans, including millions of children, are destined to fall off Medicaid when the nation’s public health emergency ends, as states face a herculean mission to sort out who no longer belongs on rolls that have swollen to record levels during the pandemic.

The looming disruptionis a little-noticed side effect of the coronavirus crisis, and it is stoking fears among some on Medicaid and their advocates that vulnerable people who survived the pandemic will risk suddenly living without health coverage. For the Biden administration — which will make the decision on when to lift the health emergency — there is the potential political stain of presiding over a surge of poor, newly uninsured Americans, depending on how things go once states resume checking which Medicaid beneficiaries still qualify.

The full article is available here.

New Nursing Home Regs Coming From Feds Within Year?

During the President's State of the Union Address, one of his initiative's is reforming of SNFs. So a flurry of articles have been published recently. Here are some highlights for you. 

Biden Pledges Better Nursing Home Care, but He Likely Won’t Fast-Track It (discussing lack of use of interim final rules). The article reports that we should expect CMS to study the issue, especially minimum staffing standards, before acting. 

Biden’s Promise of Better Nursing Home Care Will Require Many More Workers.   Regarding proposed regulations, "[t]he centerpiece of the effort is establishing minimum staffing levels for facilities. To date, the Centers for Medicare & Medicaid Services requires “adequate” staffing but specifically mandates only a skeleton crew of round-the-clock nursing coverage and one registered nurse who works at least eight hours each day."

CMS eyes 'full-court sprint' to nursing home staffing minimums rule  (new rules expected within year) (subscription required to read the story).

The reforms just aren't limited to increasing staffing standards. Read the fact sheet from the White House, available here.

Adapting Family Law to Recognize Importance Of Older Members and Significance of Aging

Naomi Cahn of University of Virginia School of Law Law joins Clare Huntington, of Fordham Law  and Elizabeth Scott, Emerita Professor at Columbia Law, to propose needed changes in family law to reflect the impact of aging.  In their forthcoming article for Yale Law Journal (Vol. 132) titled Family Law for the One-Hundred Year Life, they contend family law must address the interests and needs of families across the life span, and not just those of younger people.  They point to three areas for focus: the dignity and autonomy interests of older persons, structural inequalities, and the need for legal mechanisms that are efficient and accessible.  An example of their calls for legal reform is the discussion of intrafamily personal care contracts:

The response of regulators and courts to intrafamily personal care contracts illustrates well the law’s failure to support family care, especially for low-income families. In arranging in-home care, older adults sometimes contract with service providers, but they also contract with family members. A care contract is especially helpful when an older adult wants to receive these services from a family member but the family member cannot provide care without compensation. But these agreements run into problems. If the older adult is trying to qualify for Medicaid, many states scrutinize the contracts to ensure they are not simply a means for transferring assets from the older adult to the younger relative, helping the older adult satisfy Medicaid’s means-tested eligibility requirements. Partly based on the assumption that familial care is provided altruistically, state regulators regularly find that the agreements are, indeed, fraudulent transfers. This is an example of class-based discrimination: intrafamilial contracts for care are not scrutinized by public authorities unless the care recipient seeks to qualify for public support through Medicaid.

Equally interesting is their discussion of "opt-in or opt-out" concepts for the definition of family.  All-in-all, this article looks to the future of judicial, regulatory and legislative legal systems, while also offering ways to challenge our students in the classroom now.  

 

Slam the Scam Day

What will you be doing on Slam the Scam Day? Being a safe and smart consumer?  The SSA Inspector General announced in a press release that Slam the Scam day will be held on March 10, 2022.

Slam the Scam Day is an initiative to raise public awareness of the pervasive scams that continue to plague the nation and is part of the Federal Trade Commission’s National Consumer Protection Week, (NCPW) happening March 6-12, 2022. The initiative, which began in 2020 to combat Social Security-related scams, is now expanding to include other government imposter scams. In a government imposter scam, someone claims to be an SSA, or another government employee, and may ask for personal information, demand payment, or make threats. These scams primarily use the telephone, but scammers may also use email, text messages, social media, or U.S. mail.

The focus of this year's initiative is spotting the scams. "SSA OIG provides resources on its website and posts tips and warnings on social media platforms.  There will be webinars and social media chats to give the public information that empowers them to Slam the Scam."

 

"Dinobabies" at IBM? NY Times Article

The New York Times, among other publications, ran a recent article about an age discrimination case,  Making ‘Dinobabies’ Extinct: IBM’s Push for a Younger Work Force.   Here is a brief excerpt from the beginning of the article.  

In recent years, former IBM employees have accused the company of age discrimination in a variety of legal filings and press accounts, arguing that IBM sought to replace thousands of older workers with younger ones to keep pace with corporate rivals.

Now it appears that top IBM executives were directly involved in discussions about the need to reduce the portion of older employees at the company, sometimes disparaging them with terms of art like “dinobabies.”

A trove of previously sealed documents made public by a Federal District Court on Friday show executives discussing plans to phase out older employees and bemoaning the company’s relatively low percentage of millennials.

The documents, which emerged from a lawsuit contending that IBM engaged in a yearslong effort to shift the age composition of its work force, appear to provide the first public piece of direct evidence about the role of the company’s leadership in the effort.

The article is available here. The pleading referenced is one of the number of filings in the case, which is available on PACER. I found the pleading here. 

Free Webinar: Social Security Overpayments

Mark your calendars for this upcoming webinar from the National Center on Law & Elder Rights,  on Social Security Overpayments and Low Income Adults. set for February 23, 2022 at 2 eastern.  The webinar will cover the following: "An overpayment of Social Security or Supplemental Security Income (SSI) benefits occurs whenever an individual receives more money for a month than the amount that should have been paid by the Social Security Administration (SSA). This training will review the options individuals have when they receive a notice of an overpayment from SSA. Presenters will cover the steps advocates can take to ensure the accuracy of an overpayment claimed by SSA, to reduce or eliminate the amount taken by SSA, and to enforce clients’ due process rights. Participants will also learn about recent changes SSA has made to address some of the problems with the overpayment appeal and waiver processes, and how advocates can be part of the efforts to tackle these problems. "  To register, click here.

Podcast on Nursing Home Neglect

The National Consumer Voice for Quality Long-Term Care is offering a podcast with Dr. Laura Mosqueda on Nursing Home Neglect: Preventing It and Getting Help. Here's a description of the podcast:

The pandemic has renewed concerns about the quality of care that residents receive in some nursing homes, and many family members have reported significant decline in the condition of their loved ones. Neglect and abuse of older adults is a long-standing problem that is under-reported and has not received the necessary attention and response from policymakers, yet it results in needless and preventable suffering and harm.

In this episode with Dr. Laura Mosqueda, a professor of Family Medicine and Geriatrics at the Keck School of Medicine at the University of Southern California, we talk about neglect, which is the failure to provide goods and services to an individual that are necessary to avoid physical harm, pain, mental anguish, or emotional distress. Neglect may or may not be intentional.

The link to the podcast is here. You can subscribe to the podcast series from this page as well as find information about the Consumer Voice's YouTube channel.

Social Security Survivors Benefits for Those LGBTQ Who Could Not Marry

The New York Times reported a few weeks ago that SSA has agreed that those LGBTQ who were in a committed relationship and couldn't marry until marriage equality are entitled to survivors benefits. Social Security Opens to Survivors of Same-Sex Couples Who Could Not Marry

Challenging the policy that limited survivor’s benefits to married couples took years and a class-action lawsuit that bears Ms. Thornton’s name. In November, the agency dropped its Trump-era appeals against Thornton v. Commissioner of Social Security and Ely v. Saul, two federal lawsuits brought by surviving same-sex partners or spouses.

The Social Security Administration now allows gay men and lesbians to receive survivor’s benefits if they can show that they were in a committed relationship and would have married had that been possible. The change could mean greater economic protection for a population with higher poverty rates than American adults overall.

Important and good news!

Webinar on Housing Rights Post-Disaster

The National Center on Law & Elder Rights has announced the following upcoming webinar, Addressing Housing Issues Facing Older Adults Following A Natural Disaster on February 9 at 2 eastern.

Older residents in areas affected by natural disasters face a number of challenges, including issues related to housing security and obtaining temporary shelter. Legal assistance and aging services professionals play a critical role in identifying these needs and providing assistance before, during, and after a disaster. This training will discuss common housing issues faced by homeowners and renters following a natural disaster, with a focus on how advocates and providers working with older adults can assist them pre-disaster to head off these housing issues. The webcast will also discuss post-disaster resources available to older adults and advocates to help address housing recovery needs following a natural disaster. 

Click here to register.

Senior Abuse Financial Tracking and Accounting (SAFTA) Toolkit

The Department of Justice Elder Justice Initiative u has announced the release of Senior Abuse Financial Tracking and Accounting (SAFTA) Toolkit.

Guided by the adage “A picture is worth a 1000 words”, the Senior Abuse Financial Tracking and Accounting (SAFTA) tool provides elder justice professionals with a simplified forensic instrument for illuminating suspicious financial patterns and facilitating the prosecution of suspected elder financial exploitation.

Developed by a forensic accountant, the SAFTA tool is an Excel macro-enabled worksheet into which financial records are entered and pivot tables and graphs are automatically created to provide a visual depiction of financial data. The tool is downloaded onto the user’s computer to ensure a secure working environment.

SAFTA is not intended to turn law enforcement officers into forensic accountants. Rather, it is designed to enable law enforcement officers to gather financial records and convert those records into forensically relevant visual depictions of the financial records. SAFTA works best on cases of low to moderate complexity.

A short training video about the toolkit is available here.