Elder Law Prof Blog

Pittsburgh-Post Gazette Editorial: "A Tipping Point" for Private Equity Firms in Nursing Homes

Recently, the Pittsburgh Post-Gazette's online publication carried an editorial on a very hot topic, the impact of private equity investment in nursing homes.  The opening paragraph sets the stage for the argument:

The long-term mismanagement of nursing homes by private equity firms has reached a tipping point, resulting in over 20 bankruptcy filings in local elder care facilities in just a few weeks. It’s only the beginning of turmoil for nursing homes run by private equity, and the terrible results should be a lesson guiding future oversight.

As the article explains, while there are a host of bankruptcies in the Pittsburg area, the problem is not "just" a local issue.  Further, the editorial tracks a corporate strategy designed to separate the operational side of the business from the more lucrative "management fee" side of the business, observing: 

Private equity firms extract money from nursing homes in a process called a “sale-leaseback,” or selling the land out from under the facilities for lump payments. Nursing homes are suddenly forced to pay rent or “management fees” to occupy facilities they once owned. This is the same process, in a much less sensitive business, that resulted in the bankruptcy of the Red Lobster restaurant chain.

I once tried to explain to a financial advisor that I wanted nothing to do with investments by private equity into for-profit health care, and especially into nursing home care, as I personally could see no easy way for profit-seeking to create better quality of care.  Did they listen?  It is hard to know.  But, as the editorial also points out, new federal Medicare/Medicaid rules now seek to compel facilities to "disclose their ownership." 

The editorial concludes with especially strong wording, expressing hope that disclosure rules will help to "shift incentives against vulture capitalists, and toward operators that put their patients, not profits, first."  

For more read,  Pittsburgh Post Gazette Editorial, "Private Equity and Nursing Homes are a Match Made in Hell." 

 

Case Western Reserve Hosts Law-Med Conference on Diminished Capacity and the Law

Law and Bioethics Professor Sharona Hoffman, Co-Director of the Law-Medicine Center at Case Western Reserve University organized a terrific symposium on Cognitive Decline and the Law, held on March 1, 2024.  Thank you, Sharona, for inviting me to participate!   

In my talk, I  suggested that the time has come for clearer thinking on a long-standing legal standard, known in many jurisdictions as the "Lucid Moment" or the "Lucid Interval Doctrine," that has permitted attorneys' testimony on clients' orientation in time, place and person to suffice as evidence of sufficient capacity in legal transactions, even in the face of expert medical testimony about Alzheimer's Disease or other advanced dementias. Research demonstrates that Canadian academics have been  questioning reliance on "lucid intervals in dementia" as early as 2015.  My additional thanks to Penn State Dickinson Law student and research assistant extraordinaire, Noah Yeagley, for joining us at the conference and who was especially enjoying this conference opportunity to revisit his pre-law school graduate work in neuroscience.

The day began with a keynote presentation by Dr. Carol Barnes, University of Arizona, addressing "Brain Mechanisms Responsible for Cognitive Decline in Aging."  One key takeaway for me from her presentation was that while physical exercise is important for overall health, "learning new things" is probably even more important in maintaining cognitive function over time.  

The first set of panelists dug deeply into the roles of people supporting others in decision-making, whether with the aid of formal "supported decision-making agreements" and use of powers of attorney or different forms of substituted judgment.  Rebekah Diller, Clinical Professor at Cardozo Law, Megan Wright, Professor of Law and Medicine at Penn State Law, and James Toomey, Assistant Professor of Law at Pace University were the presenters on cutting-edge issues.

In the second panel, Neurology Professor Mark Fisher from the University of California Irvine was very timely in his focus on the potential for cognitive decline in both voters and candidates in politics, discussing a wide range of possible examples across history in the U.S. and Israel.  Associate Professor Jalayne Arias from Georgia State University School of Public Health demonstrated significant concerns in the overlap between criminality and dementia, whether from the standpoint of arrest, conviction, incarceration, or release of persons with cognitive declines.

Sharona Hoffman did double duty during the packed day, presenting issues of cognitive declines both in the workplace and on our roads.   She used humor to soften some of the tough news on the lack accountability for risk in either domain.  It was clear from the audience response -- in both the sold-out auditorium and on-line -- that everyone has a story about dementia and drivers, often from our own families.

My long-time friend working specifically in the "elder law" space, Nina Kohn, Professor of Law at Syracuse and now also a Distinguished Scholar in Elder Law at Yale Law School, gave the latest on proposed -- and much needed -- reforms in court-appointed guardianships, highlighting key concerns addressed in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act,  adopted as of today in two states, Maine and Washington, and introduced or pending in at least four more states.

The speakers in the important last panel of the day were clearly looking to the future on research and developments in the diagnosis, care and community response needed for "healthier" approaches to problem-solving.  Dr. Jonathan Haines, a genetic epidemiologist at Case Western Reserve University, surveyed the advances and challenges in attempting to build a deep bank of genetic information on Alzheimer's Disease. Law Professor Emily Murphy at UC Law San Francisco outlined the emerging theory of "collective cognitive capacity" as an approach to the challenges posed by social, environmental, and economic factors that may be impacted by brain health and cognitive decline.  Tara Sklar, the Director of the Health Law and Policy Program for the University of Arizona College of Law spoke on the potentials and challenges for telemedicine in treating patients with cognitive declines. Professor Sklar is also the new chair of the AALS Section on Aging and the Law.  

A packed day, for sure, with support from Virginia Lefever, Editor for CWLR's journal of law and medicine, Health Matrix, who was receiving formal drafts of papers 
from presenters for a future issue.

And for those of us who were determined to follow Dr. Barnes' encouragement to "keep learning," the evening did not end early, as we continued with a tour of the University's wonderful public art spaces and then on to the world-renowned art collections at the Cleveland Museum of Art -- including a "First Friday" party that had lots of people dressed up and dancing!  "Hands"-Down, it was a great conference!

Medicare and Social Security Projections-Not Unexpected?

The news from the Congressional Budget Office underscores the reality that the SSA and Medicare Trustees have been pointing out for a while now.  According to an article yesterday in The Hill, CBO warns of sharp uptick in Social Security, Medicare spending,

Federal spending on Social Security and Medicare is projected to rise dramatically over the next decade, far outpacing revenues and the economy on the whole while putting new pressure on Congress to address accelerated threats of insolvency, according to new estimates from the Congressional Budget Office (CBO). 

The increase is driven by a variety of factors, including Social Security’s new cost-of-living adjustment, the rising cost of medical services under Medicare and greater participation rates in both programs, as the last of the baby boomers become eligible for retirement benefits. 

Further, in Social Security set to run short of funds one year earlier than expected the director of the CBO explains

Social Security funds are set to start running a shortfall in 2032, one year earlier than previously expected, the director of the Congressional Budget Office (CBO) said on Tuesday.

“The Social Security solvency date — the exhaustion date for the trust fund — is now within the budget window,” CBO Director Phillip Swagel said, referring to the 10-year period covered by the agency’s annual report.

If the Social Security funds become insolvent and there is no change to current laws, beneficiaries would see a more than 20 percent reduction in their benefits, Swagel added. 

This is the CBO’s second update to the Social Security insolvency date in the last two months, after it adjusted its projection down to 2033 in mid-December.

And finally, in Axios today, Medicare politics are on a crash course with reality

By the numbers: Medicare spending is expected to more than double by 2033 — climbing to $1.6 trillion, or over 4% of the entire U.S. economy, according to an estimate released yesterday by the Congressional Budget Office.

[T]he program's trustees have said the fund that pays for Medicare's hospital coverage will soon reach a dangerous tipping point — paying out more than it takes in. On that trajectory, it eventually wouldn't be able to pay for the coverage it's supposed to provide.

Want to read the full CBO report? It's here.  

Misquoting Bette Davis, "Fasten your seatbelts. It's going to be a bumpy ride."

MA Plans May Not Cover All Medicare-Allowed Days for SNF Stay?

Kaiser Health News just released this story, Nursing Home Surprise: Advantage Plans May Shorten Stays to Less Time Than Medicare Covers.

Health care providers, nursing home representatives, and advocates for residents say Medicare Advantage plans are increasingly ending members’ coverage for nursing home and rehabilitation services before patients are healthy enough to go home.

Half of the nearly 65 million people with Medicare are enrolled in the private health plans called Medicare Advantage, an alternative to the traditional government program. The plans must cover — at a minimum — the same benefits as traditional Medicare, including up to 100 days of skilled nursing home care every year.

But the private plans have leeway when deciding how much nursing home care a patient needs.

One expert interviewed for the story  noted that "[a]s Medicare Advantage enrollment has spiked in recent years, ... disagreements between insurers and nursing home medical teams have increased. In addition, [the expert] said, insurers have hired companies, such as Tennessee-based naviHealth, that use data about other patients to help predict how much care an individual needs in a skilled nursing facility based on her health condition. Those calculations can conflict with what medical teams recommend...."

This is an important issue. Read this story.

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.

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.

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.

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.

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.   

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. 

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.

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.

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. 

Update on Medicare Observation Status-Appeals Process Announced

The Center for Medicare Advocacy announced in their newsletter a few weeks ago that Medicare has announced the development of an appeals process for certain patients on observation status.

As the result of a court case, the Medicare.gov website now alerts a nationwide class of Medicare beneficiaries that they “have appeal rights” when a hospital changes their status from inpatient to outpatient observation, and that the appeal process is currently under development. View the information here (click on “Appeals in Original Medicare” and scroll to “Coming Soon: Appeal when a hospital changes your status from an inpatient to an outpatient with observation services.”).

The “observation” designation can have severe ramifications for beneficiaries. Many will face no coverage for post-hospital nursing home care, which requires a prior “inpatient” hospitalization of at least three days. Time spent in observation status does not count towards the required inpatient stay, even though observation stays can last several days and the care can be indistinguishable from inpatient care.

The full article is available here. Information about observation status appeals can be found here (click on appeals in original Medicare).

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!

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.

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.

New Article on Needed Medigap Protections

 

Center for Medicare Advocacy Senior Policy Attorney Kata Kertesz had her article, “Expansions of Medigap Consumer Protections are Necessary to Promote Health Equity in the Medicare Program,” published last week in the Stetson University College of Law Journal of Aging Law & Policy.   The article starts on page 39.  Check out all the other articles in the volume while you are dowloanding the Medigap article.

Check it out!

Did You Catch the SSA and Medicare Trustees' Reports?

 Early last month, the SSA Trustees released their annual report. Here's the bottom line:

 The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASI and DI) Trust Funds are projected to become depleted in 2035, one year later than projected last year, with 80 percent of benefits payable at that time.

The OASI Trust Fund is projected to become depleted in 2034, one year later than last year’s estimate, with 77 percent of benefits payable at that time. The DI Trust Fund asset reserves are not projected to become depleted during the 75-year projection period.

The full report is available here.

The Medicare Trustees also released their 2022 annual report, which is available here. Here's the bottom line for Medicare:

• The Hospital Insurance (HI) Trust Fund, or Medicare Part A, which helps pay for services such as inpatient hospital care, will be able to pay scheduled benefits until 2028, two years later than reported last year. At that time, the fund’s reserves will become depleted and continuing total program income will be sufficient to pay 90 percent of total scheduled benefits.

• The Supplementary Medical Insurance (SMI) Trust Fund is adequately financed into the indefinite future because current law provides financing from general revenues and beneficiary premiums each year to meet the next year’s expected costs. Due to these funding provisions and the rapid growth of its costs, SMI will place steadily increasing demands on both taxpayers and beneficiaries.

• For the sixth consecutive year, the Trustees are issuing a determination of projected excess general revenue Medicare funding, as is required by law whenever annual tax and premium revenues of the combined Medicare funds will be below 55 percent of projected combined annual outlays within the next 7 fiscal years. Under the law, two such consecutive determinations of projected excess general revenue constitute a “Medicare funding warning.”  Under current law and the Trustees’ projections, such determinations and warnings will recur every year through the 75-year projection period.   

Oh, and remember the hefty increase in the Part B premiums for 2022? It's going to be rolled back-just not this year.

[T]he Centers for Medicare & Medicaid Services (CMS) released a report that recommends cost savings from lower-than-expected Medicare Part B spending be passed along to people with Medicare Part B coverage in the calculation of the 2023 Part B premium. Earlier this year, Department of Health and Human Services (HHS) Secretary Xavier Becerra instructed CMS to reassess the 2022 Part B premium amount in response to a price reduction for Aduhelm™, a monoclonal antibody directed against amyloid for use in treating Alzheimer’s disease. Given the information available today, it is expected that the 2023 premium will be lower than 2022. The final determination will be made later this fall

 

Roundup of Articles from May

Having not blogged in a while, I have a few articles in my inbox from May that I thought at least deserved a mention.  (The titles are pretty self-explanatory). Some are more feel-good stories (which we can all use right now) and others are more serious.  Read when you have time.

1.   During the Omicron Wave, Death Rates Soared for Older People.

2.   ‘Grandfluencers’ Are Sharing a New Vision of Old Age. On TikTok, the over-65 set is thriving.

3. These 90-Year-Old Runners Have Some Advice for You

4. CMS Unveils More User-Friendly Medicare Website

5. Government watchdog: 1 in 4 older Americans on Medicare harmed during hospital stay

6. V.R. ‘Reminiscence Therapy’ Lets Seniors Relive the Past

7. States with the Most Improved Outlook for Older Adults (apologies to Morris Klein who sent me the link back in May).

Will Congress Pass Medicare Drug Negotiated Pricing?

Last week Roll Call reported that the "Senate draft[ed] [a] last-ditch drug pricing plan ahead of midterms." This would allow "Medicare [to] negotiate prices directly with manufacturers for some prescription drugs ahead of the midterm elections, according to a summary of the plan obtained by CQ Roll Call."  This was an integral part "of Democrats’ sweeping social spending and climate bill after intra-party divisions killed the original legislation" the article reports. The article describes the proposal.  Since there's only about 3 weeks before the August recess, we'll know the outcome soon.