CMS Releases Spousal Impoverishment Standards, Income Caps, and Home Equity Limits for 2023

The Centers for Medicare and Medicaid Services (CMS) issued revised Spousal Impoverishment Standards, Income Caps, and Home Equity Limits for 2023.  These standards, caps, and limits govern Medicaid eligibility determinations.

Spousal Impoverishment Standards

The spousal impoverishment thresholds will increase 8.2 percent over 2022’s figures.

The official spousal impoverishment allowances for 2023 are as follows:

• Minimum Community Spouse Resource Allowance: $29,724.
• Maximum Community Spouse Resource Allowance: $148,620
• Maximum Monthly Maintenance Needs Allowance: $3,715.50

The Minimum Monthly Maintenance Needs Allowance for the lower 48 states will rise to $2,288.75 ($2,861.25 for Alaska and $2,632.50 for Hawaii) until July 1, 2023.

Income Cap (in applicable states): $2,742

Home Equity Limits:

Minimum: $688,000

• Maximum: $1,033,000

You can access the complete chart of the 2023 SSI and Spousal Impoverishment Standards from CMS.

Ohio Department of Medicaid Changes Treatment of Retirement Plans- Eases Burden of Planning

The Ohio Department of Medicaid (ODM) has finally adopted a change that means retirement accounts will no longer be counted  as resources for determining Medicaid eligibility. This means that Ohio law now comports with existing federal law,"[a]fter six suspenseful years," as one law firm characterized the change,  Understanding the change, and its impact, requires some appreciation of  Medicaid and its role in paying for long-term care.

As most know, Medicare provides no real long-term care benefit. Medicare does not cover the cost of any care in a nursing home when a person requires only custodial care. Custodial care includes the following services:

• bathing
• dressing
• eating
• going to the bathroom

Generally, if the care or services that a person requires can be provided by another person without a degree or certification, Medicare does not cover the service.  There is no licensing required for one person to assist another to bathe, or to dress themselves.  There is, of course, licensing required for dispensing medical care, or providing certain rehabilitative care services such as physical therapy and occupational therapy.  

Further, non-custodial care is not fully covered by Medicare.  The best Medicare will do is pay for acute or rehabilitative care for a short period of time following a three-day hospitalization.  The Medicare benefit provides payment for twenty (20) days of institutional care following hospitalization, and additional payments for necessary care up to a total of one hundred (100) days.  After that one hundred (100) days, if a person needs long-term care (in-home assistance, assisted living, or a nursing home), that care is not paid for by private health insurance or by Medicare. 

Nursing home care can cost, on average, $8-12,000/month. Most people cannot afford to pay out of pocket such a large amount for long, so many turn to Medicaid to cover these costs.

Medicaid will pay for the cost of a nursing home or assisted living facility, provided that the institution accepts Medicaid reimbursement, but Medicaid benefits are limited to the impoverished.  That means that:

• A single person can have no more than $2000 to their name (in addition to a home and a car);
• A married couple is limited to a maximum of $139,000 and often less if the combined estate is less that $278,000 (the Community Spousal Resource Allowance or CSRA is one-half of the estate up to $139,000 but only one-half whatever the estate is valued at if the estate is less than $278,000).

To qualify, Medicaid applicants must "spend down," a euphemism for impoverishing themselves, especially since the person receiving their benefits may have to contribute their income to their cost of care.

Taxes and Retirement Accounts Under The Old Rules

For many people, retirement accounts (IRAs, 401ks, 403bs, deferred compensations, Roths, etc.), have replaced the home as the most valuable asset in their estate. Retirement accounts are owned by human beings (for example, trusts or LLCs cannot own retirement plans), and cannot be transferred between people except by death or divorce. Except for Roth IRAs, the taxes haven’t been paid on the accounts, so if individuals want to cash it out, they’ll incur significant income tax. 

Safeguarding the home or after-tax investments from spend-down ahead of time under the Medicaid rules is and has been fairly straightforward. Simply, to protect the retirement accounts, the account would be liquidated and the tax  incurred and paid.  In addition to the tax consequence, liquidation often meant losing the future benefits of tax deferred growth.  The options for safeguarding retirement accounts were limited, complex, expensive, and, for most people and advisors, frustrating. 

Many people would simply leave their retirement assets exposed to spend-down risk, choosing to forego the tax incurred and necessary, and protect their home and other assets.  Imagine a senior paying the cost and expense necessary to protect their $200,000 home, only to lose their $500,000 IRA left exposed. Those who chose against protecting the IRA in advance would, in crisis situations, end up with a severe tax consequences liquidating their IRA to either pay for care, or to protect other assets.

Under the old rules, if a couple had $500,000 in retirement assets, that amount counted toward their asset limit. They would have to spend their money until they reached $139,000 in total countable assets, incurring taxes along the way.  Retirement accounts were not treated any differently than checking or brokerage accounts for eligibility purposes.

Taxes and Retirement Accounts Under The New Rules

Starting in 2016, Ohio changed how it takes Medicaid funding from the federal government. As part of that change, it had to align Medicaid with Social Security disability asset rules. Under Social Security rules, retirement accounts are not counted as assets if they pay out regular, periodic payments – those payments are counted as income instead. In other words, as long as you take your required minimum distribution, or set up a recurring distribution that looks like a required minimum distribution, then Medicaid wasn't supposed to consider how much is in that account, just how much those distributions are.

After four years, the Ohio Department of Medicaid finally started talking about making the change. Some counties adopted these rules consistently, others inconsistently, and some not all. Finally, after more than a year of promising guidance, ODM published Medicaid Eligibility Policy Letter 164 on May 26, 2022. This letter clarified how the Social Security rules applied to Ohio and confirmed that retirement account payouts should be treated as income, and the principal should not be counted.

The change means seniors won't be forced to cash out their retirement accounts in order to qualify for Medicaid. It will save taxes and allow more money for the applicant or the healthy spouse. 

Some folks believe, and are being led to believe that the new rules completely protect retirement accounts.  That is not true.  The income is still countable, but estate planning can provide a solution in the form of a Qualified Income if the income is excessive.  Even then, and more fundamentally Medicaid estate recovery still exists.  Medicaid estate recovery permits Ohio to recover money paid in benefits from a Medicaid recipient’s estate.  

Regardless, the change will make planning much comfortable for people with large retirement accounts. 

Medicare Savings Programs

Medicare Savings Programs help pay your Medicare costs if you have limited income and savings. Medicare Savings Programs are also called MSPs, Medicare Buy-In programs, or Medicare Premium Payment Programs. There are three main programs, with different benefits and eligibility requirements, and a fourth program if you have a disability. 

The three main MSP's are:

• Qualifying Individual (QI) Program: QI pays the Medicare Part B premium, and reimburses the recipient for premiums paid up to three months before your MSP effective date, and within the same year of that effective date. 

• Specified Low-income Medicare Beneficiary (SLMB): SLMB pays for the Medicare Part B premium, and reimburses for premiums paid up to three months before your MSP effective day.  Unlike QI, a recipient may be reimbursed for premiums from the previous calendar year. 

• Qualified Medicare Beneficiary (QMB): QMB pays for Medicare Parts A and B premiums. A QMB recipient, typically should not be billed for Medicare-covered services provided in a recipient's Medicare Advantage Plan’s network. A QMB recipient should not owe Medicare deductibles, copayments, and coinsurances, from network providers. 

There is a fourth MSP called the Qualified Disabled Working Individual (QDWI), which pays for the Medicare Part A premium for certain people who are eligible for Medicare due to disability. Contact your local Medicaid office to learn more. 

There are even more benefits to enrolling in an MSP. MSP enrollment: 

• Allows a recipient to enroll in Part B outside of the regular enrollment periods; 

• Eliminates the Part B late enrollment penalty if there is one, and; 

• Automatically enrolls the recipient in Extra Help, the federal program that helps pay Medicare prescription drug (Part D) plan costs 

To qualify for an MSP, a beneficiary must have Medicare Part A and meet income and asset guidelines.  

If a beneficiary does not have Part A but meets QMB eligibility guidelines, the state may have a process to allow you to enroll in Part A and QMB outside of the General Enrollment Period.  

Income and asset guidelines vary by state. Certain income and assets may not count and some states do not count assets at all when assessing MSP eligibility. You can contact your State Health Insurance Assistance Program (SHIP) to learn more about MSPs in your state and to receive assistance with the application process. 

The MSP program helps many beneficiaries satisfy Medicare costs.  Contact your local SHIP to see if you’re eligible for an MSP in your state.

This article is based on a post on Dear Marci, one of the best sources of free Medicare assistance available on the internet. Dear Marci is a "biweekly e-newsletter that helps consumers—people with Medicare, their families and caregivers—understand their Medicare benefits and options." Each issue features Medicare coverage advice, basic health tips and links to vital health care resources. You can subscribe to read and submit questions for thoughtful and helpful answers.  Dear Marci is part of MedicareInteractive.org, powered by the Medicare Rights Center.  

Despite Inability to Access Bank Account, Applicant Denied Medicaid

Medicaid is a legal system overly concerned with costs, rather than serving the best interest of those in need.  Proof of the truth of this characterization comes from an Indiana  court decision.  An Indiana appeals court recently ruled that a Medicaid applicant’s bank account is a disqualifying available resource even though the applicant was incapacitated and did not have the actual ability to access the account. Southwood Healthcare Center v. Indiana Family and Social Services Administration (Ind. Ct. App., No. 21A-MI-1778, March 11, 2022).

Samuel Hill entered a nursing home and was declared by a doctor to be incapacitated with dementia. The nursing home, acting as Mr. Hill’s representative, applied for Medicaid benefits on his behalf. Due to the severity of Hill’s condition, a petition was filed seeking the appointment of a legal guardian over his person and estate. On April 1, 2020, Amanda Brookins of Compassionate Care Guardian Services, LLC, was appointed as Hill’s guardian.  The state denied the benefits due to excess resources because Mr. Hill had a bank account balance totaling $11,367.71.

Mr. Hill, through his guardian, appealed, arguing that due to his incapacity, he did not actually have the ability to access the funds in the bank account at the time of the application. The state denied the appeal, and the trial court affirmed. Mr. Hill appealed again.

The Indiana Court of Appeals affirmed, holding that the bank account is an available resource even if Mr. Hill did not have the ability to access the funds. According to the court, “because [Mr.] Hill’s right and authority over the funds remained intact, the funds were available to him.”  The Court's opinion does not divulge whether there was evidence that the guardian, likewise, was unable to access the account, and it appears that the Court considered only the very narrow issue of whether the account was legally a countable resource, despite the fact that the applicant's disability made the account inaccessible.  

One wonders why the system is a binary system with the only possible determinations being an approval or disapproval?  In this case, wouldn't an approval conditioned upon the asset being spent down for the applicant's nursing home care, and an adjustment of Medicaid's reimbursement to the institution have been a more expedient result?  As this matter played out, it is likely that legal expenses consumed the modest account.  Moreover, the institution may have been unreimbursed for some part of Mr. Hill's care. A system that creates additional losses for those who must rely on the system is not well-functioning.   

This case also serves as an example to those concerned with guardianship risks; institutional care often necessitates and therefore encourages court-appointed guardians.  Where necessary and functioning properly, guardians protect the rights of the ward.  But here, a guardian pursued a legal matter to no conclusion that benefitted the ward, and, in fact put the interests of the ward and his caregiver in conflict.  Properly functioning a guardian should be working to ensure the care of the ward, and that effort naturally benefits institutional care.  The guardian in this case pursued a course of action that may have resulted in an institution being forced to wait for payment, and eventually, to accept less than the institution might have received by timely application of Medicaid benefits.  This course of action risked the patient being dumped by the institution, thereby potentially jeopardizing the ward's consistent care.    

Beware Direct Transfer Designations (TODs and PODs)- Part IV: TOD's in Trust Planning

This Blog has addressed in several previous articles the dangers of direct transfer designations such as transfers on death (TOD's) and payable on death (POD's) designations:

• Beware Direct Transfer Designations (TODs and PODs);
• Aging in Place Planning Heightens Necessity of Trust Funding;
• Beware Direct Transfer Designations (TODs and PODs)- Part II: Ohio Transfer of Death Designation Affidavit (TODDA) for Real Estate- Lapse of Insurance Coverage;
• Beware Direct Transfer Designations (TODs and PODs)- Part III- Transfer on Death Deed for Real Estate Results in Loss of Insurance Coverage and Impairment of Asset Value.

These articles recount why immediate transfers on the death of an owner mean risk, especially in an estate plan with an "aging in place" objective.  Regardless, these devices remain popular as inexpensive means to avoid probate and death, and are often seen as an alternative to a trust. 

Unfortunately, they are also frequently used in conjunction with trust planning.  A few years ago, when reviewing a trust for a client, the client explained that her attorney prepared a transfer on death deed for her real estate rather than a deed conveying the real property to her trust.  When asked whether the attorney explained this peculiar choice, the client stated that she received no explanation.  

I recently reviewed another estate plan incorporating a trust, and again discovered the drafting attorney utilized a transfer on death deed, or more accurately, a Transfer on Death Desgnation Affidavit (TODDA) as they are now called in Ohio.  I was surprised that two different clients, with two different lawyers, located in separate parts of the state had designed an estate plan around a trust with what I consider such a peculiar choice for handling the real property.  I searched an estate planning listserv, an electronic bulletin board where attorneys share information, and learned that there is a group of estate planning lawyers that employ transfers on death for real estate and other assets when utilizing a trust because it "retains ownership of the property in the individual name of the client."  

This is "peculiar" because the bedrock of trust planning is changing "ownership" of assets in favor of "deliberate" planning and administration.  In other words, trust lawyers recognize that owning assets in the name of an individual, or jointly in the names of more than one individual, means automatic, forced, and vested rights which often create disadvantages such as the necessity of probate. The disadvantages of individual ownership of property and assets are precisely why trusts exist.  Trusts, by intent and design, typically avoid the automatic transfer of property at the arbitrary moment of death, whether or not that transfer involves probate, by appointing a trustee, a person with a mind and heart, and authority to avoid the disadvantages of mindless and heartless immediate transfer of assets.  

Simply, the automatic transfer of ownership of property on any arbitrary date, such as the date of the owner's death, is fraught with risk and foreseeable risk of loss.  A beneficiary may:

• die with, shortly before, or shortly after the owner, resulting in probate of the assets in the estate of the beneficiary (and not incidentally, a different possible ultimate distribution of the deceased's estate- many parents prefer their estate to pass to their grandchildren rather than a daughter or son-in-law, for example);
• be disabled or incompetent to manage property, or may become so shortly before or after the owner's death;
• be a recipient of means-tested government benefits, and may, as a result of asset ownership  lose necessary government benefits or assistance;
• suffer from impairment risking loss of the assets, such a mental illness, substance addiction, non-substance addiction (gambling), or the like;
• have pledged assets to third parties such as cults or quasi-religious organizations;
• have unavoidable judgment liens, restitution orders, creditors, receivers, or trustees in bankruptcy waiting to collect the inheritance for distribution to third parties.

These examples only scratch the surface of a deep well of possible, foreseeable circumstances that may result in the loss of inheritance to third parties, and/or that may compromise the safety net protecting a beneficiary intended by a deceased. 

These risks are often unavoidable when assets pass automatically and arbitrarily on a specific date, rather than through a  process of evaluation, consideration, and deliberation. Trusts, generally, more capably permit a trustee to maneuver through these circumstances protecting the assets for the benefit of the intended beneficiaries, while disarming third parties from making claims.  

North Carolina: Rethinking Guardianship - Bill and Deborah

Bill Donohue and Deborah Woolard share the story of their choice to not seek guardianship for their son, Jeremy Woolard Donahue, who has Down Syndrome.

Rethinking Guardianship's mission is to promote less restrictive alternatives to guardianship and effect long-term changes in North Carolina's guardianship system. To learn more, visit:  https://rethinkingguardianshipnc.org/

Watch the video below:

North Carolina- Rethinking Guardianship - Janie and Suvya

Janie Desmond and Suvya Carroll discuss how they use supported decision-making in their lives as young adults living with intellectual/developmental disabilities.

Rethinking Guardianship's mission is to promote less restrictive alternatives to guardianship and effect long-term changes in North Carolina's guardianship system. To learn more, visit: https://rethinkingguardianshipnc.org/

Watch the video below:

The End of Medicaid Resource Recovery? Bill Ending Requirement Introduced

Rep. Jan Schakowsky (D-Ill.) has introduced The Stop Unfair Medicaid Recoveries Act, which would repeal the requirement that states establish a Medicaid estate recovery program and would limit the circumstances in which a state may place a lien on a Medicaid beneficiary’s property. 

The newly introduced bill, H.R. 6698, follows an April 2021 Issue Brief, entitled,  "Medicaid Estate Claims: Perpetuating Poverty & Inequality for a Minimal Return," in which five elder advocacy groups called on Congress to eliminate Medicaid estate recovery after the Medicaid and CHIP Payment and Access Commission concluded that the practice recoups only a tiny percentage of Medicaid spending while contributing to generational poverty and wealth inequity. The groups issuing the brief included the National Academy of Elder Law Attorneys and Justice in Aging.

Current federal law requires that state Medicaid programs attempt to recover long-term care costs from the estates of deceased recipients.  The mandate, courtesy of the 1993 Omnibus Budget Reconciliation Act (OBRA '93), OBRA  ‘93 was  passed partially in response to estate planners who lawfully helped clients move assets so that they could more quickly become eligible for Medicaid.  Rather than change the asset transfer rules under the Medicaid eligibility requirements, the federal government opted to leave the majority of the transfer rules the same and place the burden on the states to recover assets from those who have assets left after death. In other words, recipients could effectuate transfers to shield assets from Medicaid, but those that did or could not, risked asset recovery.    

At the time OBRA '93 was enacted, only twenty-two states had chosen to employ some form of estate recovery.  OBRA '93 initially divided the nation with some states rebelling against the practice.  West Virginia actually sued the Department of Health and Human Services (DHS) arguing the federal mandate was unconstitutional. A federal appellate court found that the mandate did not violate the Constitution. West Virginia responded, trying to soften the blow of estate recovery, by exempting approximately $50,000 in home value so those poor families would not lose their homes. West Virginia was blocked from enacting its preferred policy: even this targeted protection for impoverished families was found to violate the federal mandate.

Texas, Georgia, and Michigan also balked at implementing the law.  Michigan was the last hold out, finally conforming in 2007 when the federal government threatened to withhold its Medicaid funds. The result? Medicaid Resource Recovery is the law and is the norm.  Worse, the experience has encouraged States to enact even more draconian recovery efforts, such as filial responsibility, lest the federal government tap the State as a scofflaw and threaten defunding.  

 

Due to Medicaid’s strict resource requirements, the only thing of significant value that  a Medicaid recipient owns at death is their home, which is an exempt asset for determining Medicaid eligibility. Notwithstanding that a recipient's home is exempt in determining eligibility, serves to reduce the actual cost of caring for the senior by avoiding expensive institutional care, and is, in the vast majority of cases, better for the recipient's health and well being, Medicaid Resource Recovery permits the state to recover the home and the proceeds of sale to reimburse the state for benefits paid.  The loss is especially difficult for family members who help a recipient keep and maintain the home, believing that in addition to the better quality of life they are giving the recipient, they might receive reimbursement from the sale of the home.  Rep. Schakowsky characterized the resulting trauma: 

“Imagine losing a loved one and putting them to rest, only to have Medicaid come knocking on your door demanding you now pay for the long-term care your departed relative received -- an amount that has reached, in some cases, hundreds of thousands of dollars. Sadly, too many families experience this traumatic, horrific and cruel situation all the time. It is a well-kept secret with devastating and shocking consequences to families.”

Praising the new legislation, Eric Carlson, Justice in Aging’s Directing Attorney, said: “ 

By forcing the sale of family homes, Medicaid estate claims keep families in poverty and increase the risk of homelessness.  The Stop Unfair Medicaid Recoveries Act will fix this problem so that low-income persons don’t have to risk the family home in order to receive needed long-term care.”

The bill, which has a dozen co-sponsors, was referred to the House Committee on Energy and Commerce, of which Rep. Schakowsky is a member.  She is also Co-Chair of the House Democratic Task Force on Aging and Families.

Among other changes to the Social Security Act, 42 U.S.C. 1396p(a), the bill would add a new paragraph providing that “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.”

Several other organizations have voiced their support for this legislation:

“California Advocates for Nursing Home Reform is thrilled to support Representative Schakowsky's bill to eliminate Medicaid estate recovery,” says Patricia McGinnis, Executive Director of California Advocates for Nursing Home Reform. “It's about time we stopped punishing seniors and disabled individuals simply because they cannot afford private health care. Indeed, these recovery programs have turned Medicaid into an expensive loan rather than a benefit.”

“Medicaid estate recovery disproportionately affects people with disabilities and their families—particularly those struggling to afford housing, long term services and supports, and other home and community-based services,” says Bethany Lilly, Senior Director of Income Policy, The Arc of the United States. “The Arc is proud to support this legislation because it will help protect and expand the financial security of people with disabilities and their families.”

“Caring Across Generations is proud to support this legislation that will stop the attempts to recover funds for services that everyone should have access to when they need them, long-term services and support,” says Nicole Jorwic, Chief of Advocacy and Campaigns, Caring Across Generations. “Ending this policy that disproportionally impacts communities of color, people with disabilities and low-income families, will break a cycle of poverty and allow dignity for those who require these supports, and allow comfort to those Medicaid recipients at the end of their lives, knowing they can leave what they choose to their loved ones.”

“Medicaid estate claims prevent families from building generational wealth through homeownership, exacerbating existing economic inequities,” says Jennifer Lav, Senior Attorney at the National Health Law Program. “These rules are especially detrimental to families of color that have lower homeownership rates because of discriminatory lending and housing policies, and the families of people with disabilities, who need months or years of long-term services and supports. As long-time advocates, the National Health Law Program strongly supports The Stop Unfair Medicaid Recoveries Act and calls on Congress to pass it as a means of addressing systemic inequities in both health care and housing.”

The Stop Unfair Medicaid Recoveries Act is endorsed by Justice in Aging, California Advocates for Nursing Home Reform, The Western Center on Law and Poverty, The Arc of the United States, Caring Across Generations, The National Domestic Workers Alliance, Families USA, and Easterseals.

The bill’s authors are looking for families who have experienced Medicaid estate recovery to share their stories to educate members of Congress and seek their support for this legislation. If you know of any families who would be willing to share their story, please contact: info@justiceinaging.org.

White House Announces Measures to Improve Nursing Home Care Quality

The Biden administration on February 28th announced a round of new measures for nursing homes aimed at ensuring adequate care for seniors. 

Citing how the pandemic "highlighted the tragic impact of substandard conditions at nursing homes," the White House announced it would be issuing new requirements through the Department of Health and Human Services (HHS) to improve the "quality and safety" of nursing homes.  Through the Centers for Medicare and Medicaid Services (CMS), the administration will be proposing new minimum standards of care to be unveiled within the next year following a study to determine the level of care and staffing needed.  That means, practically, that it is intended that the new minimum standards would be in place before January 1st, 2024.

While the Administration's highlighting quality of care issues in nursing homes is welcome and commendable, it is hard to see the move as anything but a political device giving President Biden subject matter for his upcoming and first State of the Union address.  President Biden is "set to talk further on these proposed plans," among other topics, on Tuesday evening during the address.

The American Health Care Association/National Center for Assisted Living (AHCA/NCAL) and LeadingAge, while grateful the Biden administration seems to be prioritizing long-term care, questioned how these policies would be implemented and enforced without adequate funding and investments.

Mark Parkinson, president and CEO of The American Health Care Association and National Center for Assisted Living (AHCA/NCAL), said in a statement to Skilled Nursing News that additional oversight without necessary assistance will not improve resident care.  In a longer written statement, he wrote: 

“Those who continue to criticize the nursing home sector are the same people who refuse to prioritize our residents and staff for resources that will help save and improve lives. Additional oversight without corresponding assistance will not improve resident care. To make real improvements, we need policymakers to prioritize investing in this chronically underfunded health care sector and support providers’ improvement on the metrics that matter for residents.  

“Long term care was already dealing with a workforce shortage prior to COVID, and the pandemic exacerbated the crisis. We would love to hire more nurses and nurse aides to support the increasing needs of our residents. However, we cannot meet additional staffing requirements when we can’t find people to fill the open positions nor when we don’t have the resources to compete against other employers.  

“It’s time to stop blaming nursing homes for a once-in-a-century pandemic that uniquely targeted our residents and vilifying the heroic caregivers who did everything they could to protect the residents they have come to know as family. Together, we should focus on meaningful solutions that can attract and retain the frontline heroes we need and strengthen delivering the quality of care and services that our nation’s seniors deserve. Providers are dedicated to learning from this pandemic, renewing our commitment to our seniors, and offering solutions that will improve the quality of care in our nation’s nursing homes. With the proper resources and support, we can transform our nation’s nursing homes.”

On February 22nd,  Mr. Parkinson sent a letter on behalf of AHCA/NCAL to Congressional leadership thanking them for their continued support of long term care residents and staff but urging them to take additional steps to ensure the safety and protection of America’s most vulnerable.  In the letter,  he outlined the association’s specific requests of Congress that would provide nursing homes and assisted living communities with the resources necessary to combat COVID-19 and address critical challenges brought on by the ongoing pandemic. Specifically, in the upcoming appropriations bills, AHCA/NCAL is calling for replenishment of the Provider Relief Fund with $20 billion allocated to long-term care, as well as an extension to the current delay of Medicare sequestration cuts and the recoupment of Medicare Accelerated and Advance payments. 

He wrote that

“[n]ursing homes and assisted living communities are facing the worst job losses among all health care professions, and the shortage is impacting seniors’ access to care. More than half of nursing homes were limiting new admissions in recent months—at a time when overwhelmed hospitals needed our assistance to free up precious beds due to the Omicron surge.

 .           .          . 

Long term care residents and staff have been among the hardest hit by the pandemic, as the virus uniquely targeted older adults with chronic conditions and exposed long-standing issues within the industry. Chronic government underfunding coupled with workforce recruitment challenges were exacerbated by the global crisis. The number of long term care facilities forced to limit admissions or close altogether because of staffing shortages and financial concerns continues to grow." 

Katie Smith Sloan, LeadingAge president and CEO, called on officials to keep in mind Medicaid’s insufficiencies when it comes to covering the cost of service:

“We know that transparency, quality improvement, and workforce investments are critical to building better nursing homes for America’s older adults and families,” Smith Sloan said in the statement. “Yet Medicaid, the dominant payer of long-term care services, doesn’t fully cover nursing homes’ cost of quality care. Regulations and enforcement, even with the best intentions, just can’t change that math.” 

On the other hand, the Long Term Care Community Coalition (LTCCC) likened the proposed changes to “the biggest and most positive news for nursing home residents in the 35 years since Ronald Reagan signed the Nursing Home Reform Act.”

CMA Senior Policy Attorney Toby S. Edelman said the federal government’s agenda tackles issues that have “plagued” the nursing home industry for decades.

“For years, we have watched as an increasingly sophisticated and corporatized industry has, too often, cut back on staffing and essential services to maximize profits,” Richard Mollot, executive director of the Long Term Care Community Coalition (LTCCC) said in a statement. “We are profoundly grateful to the [p]resident for taking this bold stand for vulnerable residents, their families, and American taxpayers, who foot the bill for most nursing home care.”

Mollott’s comments about a “corporatized industry” echo the White House’s criticism of private equity ownership of nursing homes and practices that make it difficult for consumers and watchdogs to track corporate ownership of facilities. The Biden administration is seeking to address these issues with provisions related to greater transparency, heightened penalties and standards related to “corporate competency.”

President Biden's remarks in the SOTU address:

 And as Wall Street firms take over more nursing homes, quality in those homes has gone down and costs have gone up.  

That ends on my watch. 

Medicare is going to set higher standards for nursing homes and make sure your loved ones get the care they deserve and expect. 

We’ll also cut costs and keep the economy going strong by giving workers a fair shot, provide more training and apprenticeships, hire them based on their skills not degrees. 

 

Rethinking Guardianship- Carol Kelly

Carol Kelly shares the story of her mother, Mary Jane Mann, who was the victim of an inappropriate, predatory guardianship (conservatorship) in California. The video below features scenes from "A Hijacked Life," courtesy of KOVR CBS13 Sacramento.

Rethinking Guardianship's mission is to promote less restrictive alternatives to guardianship and effect long-term changes in North Carolina's guardianship system. To learn more, visit:

https://rethinkingguardianshipnc.org/

Watch the video below:

More is not Always Better - CMS Adds Staffing Information to Care Compare

The Centers for Medicare and Medicaid Services (CMS) recently announced that it will add data on staff turnover rates and weekend staffing levels to its Care Compare website, giving consumers another tool when choosing a nursing home.  The official Medicare website, previously called Nursing Home Compare,  offers up to five-star ratings of nursing homes based on health inspections, staffing, and quality measures. Users can search for nursing homes by location and directly compare one institution to another.  

CMS will post the following additional information for each nursing home on its website:

• Weekend Staffing: The level of total nurse and registered nurse staffing on weekends provided by each nursing home over a quarter. 
• Staff Turnover: The percent of nursing staff and number of administrators that stopped working at the nursing home over a 12-month period. 

CMS will begin adding the information to the Care Compare website in January, but the information will not be incorporated into the rating system until July 2022. 

The staffing information could not come at a more meaningful time.  Nursing homes are plagued by chronic understaffing and high turnover rates.  The problem has existed for years, but is exacerbated by the COVID-19 pandemic. A study reported in Health Affairs found that the turnover among nursing staff was 94 percent in 2017 and 2018 and mean turnover rates were as high as 140.7 percent among registered nurses, 129.1percent among certified nursing aides and 114.1 percent among licensed practical nurses. 

CMS previously noted a relationship between turnover and ratings. CMS noted in a memo that:

"facilities with lower nurse turnover may have more staff that are familiar with each resident’s condition and may therefore be more able to identify a resident’s change in condition sooner. In doing so, the facility may be able to implement an intervention to avoid an adverse event, such as a fall, acute infection, or hospitalization, which are indicators of quality. Similarly, facilities with lower nurse turnover may be more familiar with the facility’s policies and procedures and can potentially operate more efficiently and swiftly to deliver a higher quality of care to residents. Lastly, facilities with lower administrator turnover may have greater leadership stability, direction, and operations, which may help staff provide care more consistently or effectively to residents."

Regardless of the reasons for the association between turnover and quality, CMS acknowledging the relationship is encouraging.  

CMS has also acknowledged that  the additional information is important and is thus valuable to consumers.  For example, regarding weekend staffing, CMS acknowledged that consumers may not realize that nursing home staffing levels can vary on weekends. CMS hopes to encourage facilities to hire more weekend staff by adding weekend staff numbers to the nursing home rating system.

The fundamental underlying question, though, is whether adding additional information will help transform a questionable and unreliable system into a more meaningful system for consumers.  There is good reason to remain skeptical; there are numerous reports and examples suggesting that the federal ratings are inaccurate or misleading.  Consider the following:   

• NYT: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public;
• Nursing Homes Create Phony Diagnoses to Sedate Patients with Dangerous Drugs, Doubling Risk of Death;
• Nursing Home Compare Does Not Accurately Reflect Patient Safety In Nursing Homes;
• Half of Most Dangerous Nursing Homes Remain Treacherous for Residents After Homes Are Cleared By Regulators.

Worse, even if information regarding nursing homes is more accurate, it does little to help the most vulnerable seniors, those being transferred from acute care in a hospital to a nursing home for rehabilitation; patients are simply given little guidance or information to help them direct accurately their own care decisions: 

• Patients Are Not Given Quality-Of Care Information When Discharged From Hospitals to Nursing Homes.

Providing additional information through Care Compare will only be comforting for consumers and planners when the reporting deficits underlying the system are fixed, and seniors are provided quality of care information prior to transfer. 

Industry reaction to the change has been "mixed," according to Amy Novtney, writing for Mcknight's Longterm Care News.  David Grabowski, professor of healthcare policy at Harvard Medical School, told  industry stakeholders during a LeadingAge conference call, that the timing of the change “feels like a gut punch to nursing homes who are really struggling right now.”

Grabowski called on providers, however, to view the move as a positive development for the industry in the long run. Grabowski said the data could provide benefits such as shedding light on the fact that there aren’t staff available to work on the weekends, that turnover is high and that there’s a high use of contract nurses. That, in turn, could lead to policy changes.

According to Novtney, Grabowski continued: 

“I do think longer term this data will add value and can serve as a signal to all of us that we need to invest more in direct care staff. We get the turnover we pay for and since we aren’t paying enough, we’re seeing high turnover. That’s not something nursing homes can fix on their own. I really believe we need more reimbursement from Medicaid and Medicare to make that happen.”

Other industry associations agree that the decision’s timing is unfortunate given the ongoing challenges related to the pandemic. 

Others criticized the addition information as impotent to improves staffing issues. “While we support transparency and agree that staffing hours and turnover metrics are important, more reporting will not solve this issue,” the American Health Care Association/National Center for Assisted Living said in a statement to McKnight’s this week. “The addition of this reporting requirement when we are in the middle of the worst labor shortage the nursing home sector has ever faced is tone deaf. We need public health officials to do more than acknowledge these challenges, but stand up to address them. By offering funding and policy solutions that will help us attract and retain the caregivers we so desperately need, policymakers can ensure nursing home residents are well supported.”

To read CMS’s announcement about this new policy, click here.