Thursday, August 16, 2018
Senator Ron Wyden has sent a letter to the CMS administrator about CMS' staffing ratings of SNFs. His letter points out discrepancies between self-reported data and the newly required payroll data that leads to his concerns that the correctness of the information shared with residents and families
Senator Wyden has asked five questions, seeking replies by August 24, 2018.
What are the requirements and safeguards CMS has in place to ensure SNFs provide accurate information as part of the 5-Star Quality Rating System. How are these requirements enforced?
Please provide an analysis of the difference in staffing levels of SNFs between the self-reported methodology and the payroll data methodology?
What does CMS plan to do in the instances where payroll data illustrates the self-reported staffing data was inaccurate?
Would CMS consider updating the current staffing quality measures to, in addition to measuring average staffing levels, take into account inappropriate fluctuations in staffing that may lead to patients receiving inadequate care?
Would CMS consider measuring patient and/or family satisfaction as part of the 5-Star Quality Rating System?
Tuesday, August 14, 2018
Register now for a free webinar from the National Consumer Voice for Quality Long Term Care. The webinar is scheduled for September 5, 2018 at 2 edt. Here is some info about the webinar
Join this webinar to learn about sexual abuse in nursing homes. Presenters will discuss a variety of topics to help you recognize the signs of sexual abuse and immediately respond to it.
We will examine the full scope of sexual abuse in nursing homes, including: (1) its prevalence, (2) the physical and social signs of sexual abuse, (3) who is most at risk, and (4) who the perpetrators are. In addition, you will learn the protections the federal nursing home rule provides for nursing home residents against this abuse and how to respond to the needs of victims. Finally, we will equip you with concrete knowledge on how ombudsmen can advocate for nursing home residents who are victims of this type of abuse, including hearing from a special presenter on the ombudsman role in the Washington Alliance to End Sexual Violence in Long-Term Care.
To register, click here
August 14, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink
Monday, August 13, 2018
I'm a fan of WITF-Radio's Smart Talk program even though it often "interferes" with my work day, as I linger to catch the entire broadcast. I'm such a fan that even when I'm out of town, I'll often listen to the program via live streaming or podcasts -- and when I'm the western part of the U.S. I can listen live without feeling guilty because of the time difference (3 hours in the summer ). One of the recent broadcasts had me listening twice.
The program began with a report on pending legislation in Pennsylvania, that could mandate lower patient-to-nurse ratios in hospitals. During the current legislative session, the two key items are House Bill 1500 and Senate Bill 214. A coalition of Pennsylvania nurses hand-carried a petition with 10,000 signatures to the Capitol demanding support for better staffing at hospitals. On the radio program the speakers -- all nurses -- agreed about the need for adequate coverage, but disagreed about whether mandated ratios were the right solution. Not surprising is opposition to mandated ratios coming from the hospital industry representatives; however the Pennsylvania State Nurses Association also resists mandatory ratios, arguing such ratios are "not flexible enough." HB 1500 would call for different ratios according to the type of unit, such as ratio of one nurse for every two patients in the neo-natal intensive care unit, with a higher ratio of 1 to 4 permitted in a pre-surgical unit.
The program drew a lot of callers. In fact there were so many callers, host Scott LaMar deferred plans for a different topic for the second half of the hour-long program in order to continue the staffing discussion. What I found particularly interesting was that many of the callers wanted to talk about staffing ratios in rehab facilities and nursing homes, not "just" hospitals, and part of the conversation was about whether the key ratios should consider all care staff and not focus solely on registered nurses. Here is the link to the podcast:
The calls reminded me of one terrifying, long night in a hospital with a relative after she had emergency surgery. She was "allowed" to use the toilet in the bathroom, rather than a bed pan, but because she wanted to go frequently, the night time staff began insisting she use a bedpan, so that they wouldn't have to attend her in the bathroom. The staff was hostile to my efforts to help (and in fact, I didn't have a clue as how best to help), but also would have left their patient perched uncomfortably on the bed pan for a half hour or more if I hadn't intervened. She began refusing to use her call button, insisting I help her to the bathroom, even though she was still attached to various lines and monitors. It was a catch-22 situation for me as a family member -- and also for the overworked staff. I remember my one firm conviction that night was that without a family member with her, we would have been adding broken bones to the list of woes for my loved one because of the staffing issues.
Friday, August 10, 2018
Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial
According to news reports, here and here, three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility. The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father. A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.
A North Dakota's statute, N.D.C.C. Section 14-09-10, with language that can be traced back to filial support laws of Elizabethan England, provides:
It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.
One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance: "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid." The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."
According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law. Such laws have been blocked or repealed in most other U.S. states. North Dakota and my own state, Pennsylvania, are the two most notable exceptions.
My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing.
- First, if the father was in the nursing home for 7 months, who did the children think was paying for his care? I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death).
- What was the basis for any denial for Medicaid? I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt? I'm not aware of any such rule at the federal level.
- Is there another member of the family involved in the application -- someone other than the three target children -- or is there another family member involved in any "transfers" causing an alleged ineligibility period? In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
- Finally, why weren't there care planning meetings with the family that included discussions of costs of care? It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.
Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.
August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Monday, August 6, 2018
Professor Reid Weisbord, who serves as vice dean and the Judge Norma L. Shapiro Scholar at Rutgers Law School in Newark, has a new and very timely essay posted on Stanford Law Review Online. The provocative premise should certainly spark responses!
From the abstract:
This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase.
This Essay argues that, if austerity becomes necessary, federal entitlement reforms should be implemented progressively in a manner that minimizes displacement of benefits on which individuals relied when saving for old age. A policy of postmortem austerity would establish new eligibility criteria for Social Security and Medicare that postpone the effective date and economic consequences of benefit ineligibility until after death.
All individuals would continue to collect federal entitlements during life, but at death, wealthy decedents would be deemed retroactively disqualified from part or all of Social Security and Medicare benefits received during life. The estates of such decedents would then be liable for repayment of disqualified benefits.
For the full essay, read Postmortem Austerity and Entitlement Reform, published July 16, 2018.
Thursday, August 2, 2018
We blogged last week about the July 10, 2018 executive order that exempted the hiring of ALJs from the competitive process used up until then. NPR and the Washington Post did stories about the impact of the executive order on the ALJ hiring process, offering to some extent, two competing views of the outcome.
In Trump moves to shield administrative law judge decisions in wake of high court ruling explains the process typically used by federal agencies: "[w]hile individual agencies generally post their job vacancies and then assess and select candidates, they hire ALJs from a central list of applicants the Office of Personnel Management deems qualified." Referencing the recent Supreme Court decision that held that an ALJ for the SEC was not correctly appointed, the ALJ "therefore was not authorized to decide in the case, which involved a penalty against an investment adviser. [Further] [t]hat decision opens the door to similar challenges across all agencies since their ALJs were selected in the same way, often by a lower-level official who had relatively little choice of candidates from the list, said James Sherk, special assistant to the president for domestic policy" who indicated in an interview that a large number of challenges on that point have been filed and that the executive order will hopefully "protect agencies against challenges to the legitimacy of their ALJs." The article also discusses the potential for politically-based hiring decisions. It also notes that certain hearing offiers are called ALJs; but the executive order won't "apply to hiring of immigration judges or other agency-level hearing officers who in some contexts are generically referred to as administrative law judges...."
NPR's story, Trump Changes How Federal Agency In-House Judges Are Hired notes that the ALJs covered include Medicare. Focusing more on the potential political ramifications of the executive order which basically makes the ALJs political appointees, the NPR story quotes "the president of the American Constitution Society [who] in a statement specifically pointed to possible repercussions with the Social Security Administration. 'Administrative law judges handle Social Security disability cases. This administration is on record as wanting to lessen benefits. It's likely that a political ALJ appointed by this administration would rule against the beneficiaries and deny claims.'"
Monday, July 30, 2018
Yesterday I blogged about a story in Kaiser Health News on the payroll reporting by SNFs that Medicare uses to determine staffing levels. KHN also has examined the data to see if there is a correlation between staffing and a resident's care. Mining A New Data Set To Pinpoint Critical Staffing Issues In Skilled Nursing Facilities notes that "[i]n April, Medicare began using [the payroll records, known as the payroll-based journal or PBJ] to rate staffing for more than 14,000 skilled nursing facilities (SNFs). The PBJ data gives a much better look at the how staffing relates to quality of care than the less precise — and too easy to inflate — staffing data Medicare had been using since 2008, which were based on two-week snapshots of staffing homes provided to inspectors. The data show staffing and occupancy on every day — an unprecedented degree of granularity that allows for new levels of inquiry."
The author offers
Low staffing is a root cause of many injuries in nursing homes. As I wrote in the article published in The New York Times based on the data: “When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.”
The author describes in detail the decisions that were made in crunching the data, using "two intersecting principles: to reflect residents’ lived experience as accurately as possible, and to be fair to the facilities. When in doubt, [the author] erred on the side of caution."
As an aside, the author notes the acronym for Payroll-Based Journal is PBJ!
A recent story in Kaiser Health News reports that almost 10% of SNFs have lower ratings because of staffing ratios. 1,400 Nursing Homes Get Lower Medicare Ratings Because Of Staffing Concerns explains that "Medicare has lowered its star ratings for staffing levels in 1 in 11 of the nation’s nursing homes — almost 1,400 of them — because they either had inadequate numbers of registered nurses or failed to provide payroll data that proved they had the required nursing coverage ...." This information is reported as a result of the ACA, where in the past, the SNFs just reported staffing numbers. The results of this reporting change are interesting. "The payroll records revealed lower overall staffing levels than homes had disclosed, particularly among registered nurses. Those are the highest-trained caregivers required to be in a nursing home, and they supervise other nurses and aides. Medicare mandates that every facility have a registered nurse working at least eight hours every day."
One industry representative quoted in the article noted that there is a "workforce shortage." There is a caveat to using the information, as the article explains. "Medicare concedes that because the payroll system is geared toward reporting hourly work, salaried staff may not always be reflected correctly, especially if they were working overtime. But Medicare had warned the nursing homes in April that the downgrades would be coming if facilities continued to show no registered nurses on duty. The agency noted it has been preparing nursing homes since 2015 for the new payroll system."
Kaiser analyzed the data and in the article notes a difference between for-profit and non-profits as far as staffing numbers. The article also notes daily fluctuations in staffing, and especially fluctuations in staffing on weekends.
Staffing data is very useful for families in choosing a nursing home so this new data collection is definitely a step in the right direction!
On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit.
The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers. The trial judge would allow only $1 million in settlement funds to be placed in trust.
In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:
The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . .
Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.
The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back first, before any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A); I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . . Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.
The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."
July 30, 2018 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, July 24, 2018
Unusual Story Involving Allegations of NH Medicare Fraud and Allegations of Bribery of University Officials
From the publication Inside Higher Ed, a somewhat amazing compilation of allegations. The July 23 , 2018 article begins:
Philip Esformes is a Florida business executive facing numerous federal charges of Medicare fraud related to the nursing homes and assisted-living centers he has owned. The case took an unusual turn Thursday when the federal government accused Esformes of bribing a basketball coach at the University of Pennsylvania to help get Esformes's son admitted to Penn.
The indictment says that Esformes gave $74,000 in cash, plus additional perks such as limo services and rides in private jets, to a basketball coach who then placed Esformes's son on the list of "recruited basketball players," greatly enhancing the son's chances of being admitted. The coach is not identified by name in the indictment and was not charged with anything. Nor was Penn named. But prosecutors in court acknowledged that Penn is the university in question. The coach is Jerome Allen, who led the Penn program for six years and is now an assistant coach of the Boston Celtics.
Esformes is in jail, but his lawyer said he would dispute the new bribery charges. The lawyer has acknowledged that payments were made by Esformes to Allen to help Morris Esformes, the son, get better at basketball. But that answer may be complicated for Penn, given that such payments may violate National Collegiate Athletic Association rules. Morris Esformes, who played basketball in high school, did enroll at Penn and is currently a rising senior. He has never played on the basketball team there.
Beyond the case against Esformes, the indictment draws attention to the extreme advantage that athletes have in the admissions process -- not just at universities known for winning national championships, but at elite academic institutions that are highly competitive in admissions. . . .
For more, read Indictment Alleges Bribery in Admissions at Penn. My thanks to colleague Laurel Terry for sending this article our way.
Friday, June 29, 2018
A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging. She is examining what happens when struggling nursing home operations require intervention to protect existing residents. Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager. Ms. Brambila begins:
The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.
In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.
State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.
The management fee is paid by fines collected from nursing home facilities.
Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.
The average cost for managing these troubled homes exceeded $335,000.
There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers. Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota. According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.
For the full story, read "Pennsylvania to pay $475,000 for temporary nursing home manager." Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.
June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 28, 2018
Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy in 2012.
Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers. Judge Jane Magnus-Stinson observed, in ruling in favor of Ms. Vaughn, that
The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)
Wednesday, June 27, 2018
Mark your calendars for a free webinar on Financial Exploitation and Medicare Fraud. The National Center on Law & Elder Rights will be offering this webinar on Wednesday, July 18, 2018 from 2-3 edt. Here's info about the webinar
Medicare fraud hurts individuals and is harmful to the Medicare Trust Fund. The Medicare Trust fund loses between $60 and $90 billion dollars every year to fraud, waste and abuse. Individuals can lose access to Medicare services because their identity has been misappropriated by someone else. Law and aging advocates play an important role in helping older adults prevent, detect, and report Medicare fraud and abuse.
In this free webinar, Financial Exploitation and Medicare Fraud, California’s Senior Medicare Patrol will teach advocates how to identify potential Medicare scams and report fraud and abuse to the Senior Medicare Patrol. Justice in Aging will highlight potential exploitive Medicare practices and outlines strategies to help prevent exploitation.
To register, click here
June 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Webinars | Permalink | Comments (0)
Thursday, June 21, 2018
Kaiser Health News recently reported on efforts by CMS to crack down on what KHN calls "boomerang" hospital admissions. Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients focuses on the situation where nursing home residents have multiple hospitalizations.
With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.
Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.
One solution implemented by CMS, the story explains, has been to penalize hospitals when the resident is readmitted, "in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records." In the next few months, CMS will now initiate a program with incentives for nursing homes: "giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission."
Of course, this doesn't mean that a resident will never be hospitalized but hopefully this will make the process and the care better for residents. The article looks at reasons for the frequent admission problems, noting the causes include ineffective communication between the nursing home and the treating doctors.
This issue is a common one.
Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.
Wednesday, June 20, 2018
Eric Carlson, Nancy Stone and Lori Smetanka have joined forces to write an important new guideline for advocacy under the revisions issued by CMS in 2016 for nursing facility care, with an eye towards additional changes likely to occur under the Trump administration.
After surveying the most important reforms, they advise:
The revised regulations contain both positives and negatives for nursing facility residents and their advocates. The positives include expanded requirements for person-centered care, care planning, and resident choice and participation in health care services. The revised regulations also strengthen the NHRA’s prohibitions against facilities requiring a third-party guarantee of payment or a waiver of legal rights, and protections for residents from improper transfer/discharge. In addition, the regulations have added requirements for a facility grievance official and procedures.
It is disappointing, however, that the revised regulations do not require a registered nurse around the clock or a minimum staffing standard. Even though unnecessary restraints are included in the definition of “abuse” and the requirements for drug regimen reviews and reporting of unnecessary drugs were expanded, the revised regulations compromise the focus on ending the misuse of antipsychotic medications.
In addition, the Trump administration has proposed a repeal of the ban on predispute arbitration agreements and delayed enforcement remedies for certain Phase 2 requirements. The administration is also considering the repeal or further modification of other revised regulations (e.g., regulations on grievance procedures, quality assurance, and ombudsman discharge notices).
The authors explain the importance of advocacy in this time of change:
Even though CMS and the states are responsible for implementing these regulations, regulation implementation, if left solely to government agencies and providers, is usually scattershot and inadequate. For the revised regulations to truly become the national standard of care, nursing facility residents and their advocates must be prepared to assert resident rights over and over again. Another unfortunate reality is that nursing facilities may be hostile or apathetic toward the revised regulations and the survey agencies can only do so much, given that federal law requires surveys only once a year. For these reasons, it is up to residents, families, and advocates to be knowledgeable about the federal law and make nursing facilities accountable when they fall short.
For the full picture, read Advocating for Nursing Facility Residents Under the Revised Federal Requirements, published April 2018 in the NAELA Journal, and available online as a PDF.
June 20, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)
Tuesday, June 12, 2018
The Medicare Trustees have released their 2018 annual report, which is chock-full of empirical data. Reporting on this, the New York Times puts things in perspective with their story:Medicare’s Trust Fund Is Set to Run Out in 8 Years. Social Security, 16. This is less time than was reported last year, as the story explains:
The Medicare trust fund will be depleted in 2026, the administration said. By contrast, the government said last year that the trust fund would be exhausted in 2029.
In a companion report, federal officials said the Social Security Trust Funds for old-age benefits and disability insurance, taken together, could be depleted in 2034, the same year projected in last year’s report. The fund that helps tens of millions of retirees is expected to be depleted a year earlier than projected last year, while the outlook for the disability trust fund is more favorable.
A good economy doesn't seem to be enough to extend the programs' solvency, according to the article:
The report said the less favorable outlook for Medicare’s hospital trust fund resulted from “adverse changes” in program income and costs. Income to the Medicare fund is expected to be lower than estimated last year because of “lower payroll taxes attributable to lowered wages in 2017 and lower levels of projected gross domestic product,” the Treasury said in a “fact sheet” accompanying the report.
At the same time, it said, outlays from Medicare’s hospital trust fund “are expected to be higher than last year’s estimates due to higher-than-anticipated spending in 2017, legislation that increases hospital spending” and higher payments to private Medicare Advantage plans.
The Trustees report explains why the trust fund's time line has sped up:
The estimated depletion date for the HI trust fund is 2026, 3 years earlier than in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years HI income is projected to be lower than last year’s estimates due to (i) lower payroll taxes attributable to lowered wages for 2017 and lower levels of projected GDP and (ii) lower income from the taxation of Social Security benefits as a result of legislation. HI expenditures are projected to be slightly high er than last year’s estimates, mostly due to higher than expected spending in 2017, legislation that increased hospital spending, and higher Medicare Advantage payments .
The full Trustees' report is available here.
Monday, June 11, 2018
My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of GPSolo, the ABA journal for solo, small firm, and general practitioners. Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns. I enjoyed her use of classic lines from the movie Jaws.
My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, June 7, 2018
A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues. The January 2018 issue includes:
- Elder Bankruptcy
- Coordinating Representation: How Business and Elder Law Counsel Can Work Together to Meet Clients' Needs
- The Impact of Aging on Consumer Law
- The Intersection of Estate Planning, Family Law, and Elder Law
- Significant Regulatory Changes for Social Security Disability Insurance and Supplemental Security Income
- Considerations When Settling a Lawsuit for an Individual Lacking Legal Capacity or a Minor
Introducing the theme of the issue, attorney Christine Caswell writes:
While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.
June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, May 23, 2018
As we all know, CMS has been rolling out the new Medicare cards without SSN on them. AARP Research conducted a survey about the new cards, and the results are quite interesting. 2018 AARP Survey: Experience and Knowledge of Medicare Card Scams explains:
n March 2018, AARP engaged Alan Newman Research to conduct a national research study among U.S. adults ages 65 and older about their experience and knowledge around the new Medicare cards being issued in April 2018 and potential vulnerability to scams related to the new card and benefits.
Key findings include the following:
Most (76%) U.S. adults ages 65 and older indicate they have not seen, read, or heard much or anything at all about the new Medicare cards (or are not sure).
Three in four (75%) Medicare beneficiaries are not sure or are incorrect about the key change with the new cards being new identification number.
Nearly two-thirds (63%) of Medicare beneficiaries are unsure or are incorrect in believing that Medicare will charge new beneficiaries a $25 processing fee for the new card.
Over half (56%) are not sure or are wrong in thinking that Medicare will call them to verify their Social Security number before they can receive their new card.
At least one in three are extremely/very concerned about being a target of Medicare scam (33%) or victim of identity theft (40%).
A pdf of the survey results is available here.
Tuesday, May 22, 2018
NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits. The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more. NAELA members unable to attend may check the NAELA website for more information.
In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling. Congrats NAELA!
(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)
May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)