Assisted Living Medicaid Waiver Recipients Entitled to Retroactive Benefits Even in Ohio

In another setback for the State of Ohio Department of Medicaid, a federal district court has ruled that  applicants for an assisted living Medicaid waiver program in Ohio are entitled to retroactive benefits. Price v. Medicaid Director, Office of Medical Assistance (U.S. Dist. Ct., S.D. Ohio, W.Div., No. 1:13-cv-74, Sept. 1, 2015).

Assisted living residents Betty Hilleger and Geraldine A. Saunders applied for a Medicaid assisted living waiver from the state of Ohio to pay for home health care. The state found them eligible for benefits, but it denied them retroactive benefits because the state provides only prospective coverage from the date the applicant is enrolled in the waiver program.

Ms. Hilleger and Ms. Saunders filed a class action lawsuit against the state, arguing that Ohio is violating federal law by providing only prospective assisted living waiver benefits. Federal law specifically requires that retroactive benefits be provided during the three months before the application if the applicant was eligible for benefits during that time. The state argued that eligibility for assisted living waiver benefits is prospective only, because it requires, among other things, a face-to-face assessment of the applicant.  Because these specific Ohio rules mean that an individual applicant cannot be eligible for benefits prior to the face-to-face assessment, individuals cannot be enrolled retroactively in the waiver program.

The United States District Court, Southern District of Ohio, agreed that Ohio is violating federal law and granted summary judgment to Ms. Hilleger and Ms. Saunders certifying the class action.  The Court held that the clear language of federal Medicaid law requires the state to provide retroactive benefits. According to the court, "there is nothing about a face-to-face assessment or the use of the assessment tool that prevents a retrospective determination of eligibility."  In other words,  state rules cannot be used in a manner to deny the applicant what federal law plainly permits. 

CDC Issues Antibiotic Guide To Nursing Homes

Scanning electron micrograph of
human neutrophil ingesting MRSA

The Centers for Disease Control (CDC) believes that skilled nursing facilities (SNFs) need to improve their relationships with antibiotic experts and find leaders within to lead stewardship efforts in the administration of antibiotics.  As a result, CDC released Core Elements of Antibiotic Stewardship for Nursing Homes to guide antibiotic prescribing practices and help reduce the harmful effects of antibiotic resistant infections such as C. difficile.  The guide builds on the CDC's recommendation last year that all acute care facilities design an antibiotic stewardship program.

According to an article in McKnight's:

"[t]he core elements described in the guide include gaining access to experts with experience in improving antibiotic use, tracking how antibiotics are used and identifying leaders within the facility who are responsible for overseeing antibiotic stewardship activities. The guide includes a checklist that providers can use to assess existing practices and review the progress of improvement activities."

"Superbugs that are hard to treat pose a health risk to all Americans, particularly the elderly whose bodies don't fight infection as well," said CDC Director Tom Frieden, M.D., M.P.H., in a press release. "One way to keep older Americans safe from these superbugs is to make sure antibiotics are used appropriately all the time and everywhere, particularly in nursing homes."

For a recent article regarding the risk of SNF infection risk, go here. 

Nearly 1 Million Veterans Have Pending Applications For Health Care At VA-- A Third May Already Be Dead

The continuing, enduring theme of this blog is that seniors, their families, and caregivers should plan their affairs, plan for for their care, and plan for the use and disposition of assets, consciously refusing to rely upon (or trust) the legal and government systems supposedly protecting them.  If the wisdom of planning privately and eschewing public support is lost upon anyone, s/he should read the Washington Post article, entitled, "Nearly 1 million veterans have pending applications for health care at VA — and a third may already be dead."  The only way one can read the first three paragraphs without wanting to scream, weep, or both, is to believe the government "get's it," and/or will soon "fix it."  Really?

The excellent article reads as follows (emphasis added):

"Despite promises for widespread reform, nearly 900,000 military veterans have pending applications to access health care from the Department of Veterans Affairs, the department’s inspector general said Wednesday in a scathing report which recommended a total overhaul of their record-keeping system that could take years.

One-third of those veterans are thought to be dead, but problems with the data makes it tough to know how many former troops were still struggling to get care, the report says. VA has said it has no way to purge the list of dead applicants.

Over half the applications listed as “pending,” as of last year do not even say when the applications were dated, and the Associated Press reported on Wednesday that investigators “could not reliably determine how many records were associated with actual applications for enrollment” in VA health care, the report said.

“Data limitations” [note: a  term selected because it suggests that programming engineers can't program a simple database, ignoring that no computer system could report information unavailable to the agency since the agency consciously refused to properly compile that information in order to protect performance incentives, and salaries, and political progress; in other words a term synonymous with "institutional corruption] prevent investigators from determining how many now-deceased veterans applied for health-care benefits or when.

Linda Halliday, the VA’s acting inspector general, told the AP that the agency’s Health Eligibility Center “has not effectively managed its business processes to ensure the consistent creation and maintenance of essential data.” [note: that's like an drunken alcoholic who intentionally climbs behind the wheel and drives through a school yard full of children claiming he did not "effectively manage" the automobile to ensure avoidance of the school zone].

The report also says VA workers incorrectly marked thousands of unprocessed health-care applications as completed. They may have deleted 10,000 or more electronic “transactions” over the past five years.

Whistleblowers have been warning that more than 200,000 veterans with pending applications for VA health care were likely deceased. The inspector general’s report substantiated those claims.

To read the entire article, go here.

To read a Summary of the Inspector General's Report, go here.

To read the Inspector General's Report, go here.

You Can Look Up Nursing Home Fines, ER Wait Times On Yelp!

Consumers have one more tool available to help in making informed health and long term care decisions. The website Yelp, which is perhaps best known for publishing crowd-sourced reviews about local businesses, is adding health-care data to its review pages for medical businesses to give consumers more access to government information on hospitals, nursing homes and dialysis clinics.

Consumers can now look up a hospital emergency room's average wait time, fines paid by a nursing home, or how often patients getting dialysis treatment are readmitted to a hospital because of treatment-related infections or other problems.

The review site is partnering with ProPublica, a nonprofit news organization based in New York. ProPublica compiled the information from its own research and the Centers for Medicare and Medicaid Services. The data is for 4,600 hospitals, 15,000 nursing homes, and 6,300 dialysis clinics in the United States, and it will be updated quarterly.

Much of the information about hospitals, for example, is available on Medicare's Hospital Compare Web page. Yelp executives say the information is sometimes difficult to find and more difficult for consumers to understand.  Yelp is therefore adding the information to it's website in a usable consumer friendly format.

Efforts to Change Will Without Legal Counsel Backfire

Making a will without the help of a qualified attorney can be dangerous.  Trying to change an existing will on your own can fail or have unintended consequences . A recent court decision in Minnesota serves as a cautionary reminder to anyone thinking about altering their estate plan without legal advice and counsel.

Esther Sullivan executed a will in 2006, that gave half of her property to her former employee, Tara Jean Johnson. Ms. Sullivan, left a small share of her estate to Joseph VanHale, her grandson. Two years later, in 2008, Ms. Sullivan allegedly attempted to change her 2006 will by marking up a photocopy of it and writing her initials next to each change and signing and dating the bottom of each page. She allegedly wrote on top of the 2008 photocopy, “[t]he Will dated January 19, 2006 is void and to be replace[d] with this and all written in changes.” Among the changes was that Mr. VanHale would replace Ms. Johnson as the beneficiary of half her estate. In 2010, Ms. Sullivan allegedly attempted to execute another will using a form she downloaded from the Internet. This document named Mr. VanHale as her only beneficiary.

After Ms. Sullivan’s death in 2013, the probate court had to decide which of the three wills should be followed. Mr. VanHale contended that the 2010 document was a valid will, while Ms. Johnson argued for the 2006 will. The probate court ruled that the 2008 photocopy and the 2010 downloaded document were invalid because they did not comply with the state’s requirements for a valid will, which include that the will must be signed by at least two witnesses. The court held that although Ms. Sullivan probably intended to revoke the 2006 will, she did not do so successfully. Mr. VanHale appealed, arguing that Ms. Sullivan clearly intended to revoke the 2006 will and that the 2010 document was valid.

On August 17, 2015, the Court of Appeals of Minnesota agreed with the lower court that the 2006 will should be the one admitted to probate. The court ruled that only an original will, not a photocopy, can be revoked. The court also agreed with the lower court that the 2010 document had not been validly executed.

If Ms. Sullivan did change her mind and decide that she wanted her grandson to inherit her estate, the fact that she didn’t do it properly meant that far from helping her grandson, she cost him a tidy sum in legal fees. People change their minds, and circumstances can change as well – marriage, divorce, the birth of children – and estate plans need to be revised along with these changes. If you want to alter your will or another element of your estate plan, contact your elder law attorney.

To read the court’s decision in the case, In re the Estate of Sullivan (Minn. Ct. App., No. A14– 2112, Aug. 17, 2015), click here.

170 Million Pages Why You Should Avoid Probate

"You can learn a lot about people from their wills.

You can see who was happily married and who was disappointed in their families. You can see who prized brevity and who parceled out every item as if handled by a loquacious auctioneer with lambskin gloves. 

Death may come for us all, but it doesn't necessarily still our voices." 

So begins an excellent article by Todd Leopold, writer for CNN, entitled, "Paul Revere, J.P Morgan wills among millions now online." 

The article continues:

"There's always emotion involved when someone's writing a will," said Jennifer Utley, senior manager of research at Ancestry, the genealogy company. "People make really interesting statements on how much they left people."

Ancestry has now made it much easier to research old wills, whether they're from your family or someone of historical import. The company's website, Ancestry.com, has more than 170 million pages of wills and probate records available, legal records that until recently had been accessible only offline.

Historically significant, no doubt.  These records, culled from probate courts and legal archives serve as an important object lesson; your Will is a public record.  Once filed with a probate court, it is available to anyone, and with the movement to online public records, will one day be online. If you value the privacy of your most intimate thoughts, desires, and emotions, plan your estate to avoid probate.

 

Even In Ohio, A Medicare Recipient's 'Family' Includes a Spouse

The State of Ohio Department of Medicaid has a unique arrogance interpreting federal law without regard to its meaning or intent. As a result, the Sixth Circuit Court of Appeals was recently forced to hold that a state's definition of family when determining whether a Medicare recipient is eligible for Medicaid benefits to assist with premiums must include the Medicare recipient's spouse. Wheaton v. McCarthy (6^th Cir., No. 14-4023, Sept. 1, 2015).  Yes, the State of Ohio actually refused to consider a spouse a member of an applicant's family in order to deny the applicant benefits.

Joe Turner is a married Medicare beneficiary whose monthly income is around $1,300. Mr. Turner applied for extra assistance from Medicaid to help pay his Medicare premiums. Under federal law, the state compares the beneficiary's income to the federal poverty line for a family of the size involved to determine whether a beneficiary is eligible for assistance. The larger the size of the "family involved," the greater the income a beneficiary can earn and still be eligible for assistance. The Ohio Department of Medicaid did not count Mr. Turner's spouse as part of his family and denied him benefits.

Mr. Turner sued the state, arguing the state should have included his spouse in the definition of family and that, if it had, he would have been eligible to receive Medicaid benefits. The district court rejected Mr. Turner's claim, holding that because federal Medicaid law did not define "family," the state was free to define the term as it wanted. Mr. Turner appealed.

The United States Court of Appeals for the Sixth Circuit reversed, holding that the state's definition of family should include the beneficiary's spouse. The court looked at the ordinary definition of family and noted that "to ask whether the ordinary meaning of 'family' includes a person’s resident spouse, one might say, is like asking whether our solar system includes the planet Venus."  Fortunately, the reliability and predictability of the science of astronomy doesn't rely upon the State of Ohio to interpret and implement.  The court concluded that federal law requires the state to use a family-need standard, not an individual-need standard, when considering the Mr. Turner's application for Medicaid benefits, as federal law, plainly reads and intends.

For the full text of this decision, go here.

New Controversial Sign-Off Rule Increases Burdens On Skilled Nursing Facilities- Threatens Transfer To Hospitals

Kerry Young, a reporter for Congressional Quarterly Roll Call, penned an article,"Hospital Transfer Review in CMS Nursing Home Rule Draws Flack, that exposes a controversial new rule with far reaching implications for those who hope to return seniors to health, and ultimately to their homes or non-institutional community care.  

The proposed rule, in effect, would prevent the transfer of a nursing home resident from the  nursing home to a hospital in all but emergency life threatening situations, despite the fact that the staff at the nursing home and/or  the resident's family believes transfer is in the best interest of the resident, unless and until a physician personally examines the resident and approves the transfer.  Although the industry is complaining about the burden and additional cost of the regulation, consumers should appreciate that new rule is a new roadblock to transferring a patient out of an institution.  The rule is little comfort to seniors and their families who complain that skilled nursing facilities all too often "feel" like prisons, with too few available alternatives for their beloved residents.  The government asks us to trust skilled nursing facilities with our loved ones, and then prohibits these same institutions from making decisions that they believe are in our loved ones' best interest.  The true villain in the institutional care and treatment of our elderly is revealed (hence the choice of thumbnail artwork for this article).  

To understand and appreciate the risks of institutional care, go here. You can find additional discussion of the risk of institutional care for residents suffering from COPD here, and of the risk of infections here.

 

Mr. Young writes: 

A plan to require a medical signoff before moving nursing home residents to hospitals for routine care has been heavily criticized, making it one of the most controversial items in a proposed sweeping overhaul of federal rules for long-term care organizations.

The Centers for Medicare and Medicaid Services (CMS) intends to mandate an in-person visit by doctors or other specified staff before people residing in nursing homes and similar centers are sent to hospitals, with emergency cases to be exempted from the requirement. Critics say medical evaluations would be costly and impractical.

Many executives and staff workers from nursing homes argue that they will not be able to find doctors and other qualified medical personnel to carry out the requirement due to staffing shortages. They also noted that the required review could prevent staff at nursing homes from honoring the wishes of residents and their families regarding hospital transfers. Veronnica Smith, executive director of a skilled-nursing facility in rural South Dakota, said the CMS plan was not realistic in her region.

"We do not have the luxury of a physician in our community 24/7, let alone physicians that would be willing to come to the facility to assess a resident before a transfer," Smith wrote. "Further, in the event of an emergent need, the time it would take a physician to get to the facility to approve the transfer would be too late."

Stephen Hamlin, a New York-based nursing home administrator, called the proposal "impracticable and likely counterproductive."

"I do not believe that it is appropriate for a resident experiencing an acute episode to have to wait for the arrival of a physician or physician extender before receiving emergency hospital care nor it is reasonable to expect a caregiver to determine whether a resident is at risk or not," he told CMS in a comment.

CMS is accepting public feedback on the long-term care regulation through Sept. 14. CMS has received dozens of comments addressing the mandate, with more than 30 of them referring specifically to the section of a proposed long-term care rule that would create the requirement. Dozens of other people raised objections without citing the provision specifically.

Unveiled in July, CMS' long-term care proposal marks the first attempt at a comprehensive update of the regulations since 1991, the agency said. Many organizations already have said that the expenses for carrying out the new regulations for long-term care would be burdensome. By CMS' estimate, the national cost for implementation of the proposal could be $729 million in the first year, or about $46,491 for each site providing long-term or specialized nursing care. In the second year, the estimated cost would drop to about $40,685.

CMS has worked for some time to prevent unnecessary transfers of residents of nursing homes, which can be "expensive, disruptive, and disorienting for seniors and people with disabilities," the agency says on its website. People transferred from nursing homes may be especially vulnerable to risks of hospital stays, including errors with medication and infections. [blogger's note: Of course, these same arguments by advocates against the transfer of seniors from "expensive" hospitals to "less expensive" skilled nursing facilities have not slowed the pace with which the government has required reliance upon skilled nursing facilities for  care and treatment of the elderly]. 

Current rules already require doctors to document the cause for a transfer when a nursing home or other long-term care center can't meet a person's needs, CMS said in the proposal. Requiring an evaluation by a doctor, physicians assistant, nurse practitioner, or nursing specialist before such a transfer may prevent some unneeded moves from occurring and give information to hospitals in cases when patients are moved, according to the agency.

"The idea is that this would be an opportunity to identify options that would allow the resident to be treated in house, if appropriate," said Sheila Blackstock, a CMS official who is helping create the new regulation, on an Aug. 11 call with nursing home officials. "There is an emergency exemption, and it is intended to prevent this provision from delaying a necessary transfer or putting the resident at increased risk."

For a legal guide regarding a lifetime planning trust used to implement a legal strategy for Aging-in-Place, and to help avoid institutionalization, go here. 

For a comprehensive side-by-side comparison of CMS Proposed and Current Federal Nursing Home Regulations courtesy of the National Consumer Voice for Quality Long Term Care go here.

 

Medicaid Applicant Bears Burden of Proof to Rebut Presumption that Joint Account Is Available Resource

Attorneys so often counsel clients not to maintain and hold joint accounts for convenience with persons other than a spouse.  In another object lesson why joint accounts can create legal problems, a Pennsylvania trial court has ruled that a Medicaid applicant has the burden of proving that money in a joint account was not an available resource. Toney v. Dept. of Human Services (Pa. Commw. Ct., No. 2343 C.D. 2014, June 19, 2015).

The applicant, Samuel Toney, had a joint bank account with his son with $41,510.18 in the account. Mr. Toney entered a nursing home and applied for Medicaid.  The state determined that half of the amount in the joint bank account belonged to Mr. Toney, and on that basis,  denied his application due to excess resources.

Mr. Toney appealed the decision, arguing that the amount in the account belonged to his son; the son claimed that the proceeds in the account came from the sale of the son's house ten years prior. The administrative law judge nonetheless denied the appeal, and Mr. Toney appealed to court.

The Pennsylvania Commonwealth Court affirmed the state's decision, holding that the burden of proof is on the applicant to prove to whom the assets in the account belong. According to the court, "no credible evidence was presented to rebut the presumption that Toney’s share is presumed available to him for purposes of determining the availability of resources for his partial or total support."

In one sense, the applicant's loss in this case might be considered a victory.  In support of the court's decision, the court cited the federal Medicaid regulations at 20 CFR Section 416.1208(c), which provides that "[i]f there is only one [applicant] account holder on a jointly held account, we presume that all of the funds in the account belong to that individual.  In other words, the state could have just as easily presumed that "all of the funds" in the joint account were a resource of the Medicaid applicant.  Hopefully, the object lesson learned, seniors will implement plans for their long-term care, asset management, and estate distribution, thereby avoiding the obvious risks associated with joint accounts for convenience.  

For the full text of this decision, click here.

Appellate Court Rule Approves Short Term Annuities Not Countable Resources For Medicaid

The Third Circuit Court of Appeals has ruled that a Medicaid applicants' short-term annuities are not resources even though the terms of the annuities were less than the annuitants' life expectancies. Zahner v. Secretary Pennsylvania Dept. of Human Services (3^rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015).  

In three separate cases, Pennsylvania denied Medicaid applications on the grounds that annuity purchases were unlawful transfers.  Donna Claypoole's husband transferred money to their children and purchased a five-year annuity and a 14-month annuity before applying for Medicaid on Mrs. Claypoole's behalf. Medicaid applicant Connie Sanner also transferred money and purchased a 12-month annuity.  The original plaintiff Anabel Zahner deceased during the case, and was no longer a party  on appeal.

The three applicants filed a case in federal court, arguing that the annuities met the requirements of federal Medicaid law and should not have been considered transfers. All parties asked for summary judgment. The U.S. district court granted the plaintiffs summary judgment with regard to the five-year annuities, but denied summary judgment with regard to the shorter annuities, holding that the term of the annuity had to "bear a reasonable relatedness to the beneficiary's life-expectancy." The court also held that a Pennsylvania statute that purported to make all annuities assignable was preempted by the federal Medicaid law.

The U.S. Court of Appeals for the Third Circuit, affirmed the district court decision that federal law preempts Pennsylvania's law making all annuities assignable, but reversed the decision that the short-term annuities are resources. The court decided that "any attempt to fashion a rule that would create some minimum ratio between duration of an annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations." The court further held that an annuitant's motive in purchasing an annuity is not dispositive of whether it is a resource.  

The decisions, which are expansive of consumer options in planning for Medicaid eligibility, will likely invite comparison and contrast with the recent Ohio Supreme Court decisions restricting consumer options.  

For the full text of this decision, click here.