FTC Warns LTC Institutions: Stimulus Checks Are Not Available Resources So Keep Your Hands Off!

Last week, this blog addressed issues arising from stimulus checks issued to the recently deceased. This week, stimulus checks are again a topic, as some nursing homes and assisted living facilities are requesting or requiring their residents to pay the proceeds to the facility. 

The request or requirement is not lawful.  Accordingly, the Federal Trade Commission cautioned operators of "nursing homes and assisted living residences" that they cannot lawfully require residents on Medicaid to "sign over" their pandemic-inspired stimulus checks to pay down their care bills. These long-term care institutions might misunderstand the Medicaid rules, assume they are like other monies or assets, deem them available resources and require or request that the payment be made to the institution.  That's a mistake, and the law does not consider the payments "available resources:"

According to the CARES Act, those economic impact payments are considered tax credits and tax credits don’t count as “resources” for federal benefits programs like Medicaid. That means that nursing homes and assisted living facilities can’t take that money from residents simply because the resident is on Medicaid. Need some quick cites? Take a look at page 3 of the Congressional Research Services’ COVID-19 and Direct Payments to Individuals: Summary of the 2020 Recovery Rebates/Economic Impact Payments in the CARES Act and 26 U.S.C. § 6409 of the Internal Revenue Code.

Plus the FTC notes this "isn’t just an arcane hypothetical someone has dreamed up. The Iowa Attorney General’s Office and other State AGs have received boots-on the-ground reports this is happening."

Family members of Medicaid-program LTC clients should also be on the lookout.  FTC advises anyone with concerns about inappropriate actions on stimulus checks to contact their state attorney general's office and report the concern to the FTC.  In addition, contact counsel, so counsel can demand prompt repayment.  

States Grant Nursing Homes Legal Protections in Wake of Covid-19

At least 15 states have granted some lawsuit protection to nursing homes and long-term care facilities as a result of laws or governors’ orders. The move comes as Covid-19 deaths in nursing homes and long-term care facilities have reached more than 20,000, according to the Associated Press.  Unclear is whether the AP is reporting actual reported deaths, or estimated deaths, since many claim that nursing home deaths are under-reported.

Protections vary, but they usually protect nursing homes from simple negligence for injuries, deaths and care decisions during the pandemic. Suits are generally allowed for gross negligence, actual malice and willful misconduct.

States that have enacted lawsuit protection include Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont and Wisconsin.

Some states have enacted laws and executive orders that immunize health care providers but don’t specifically mention nursing homes. Protection for health care providers will likely also protect nursing homes.

The new law in New York immunizes hospitals and nursing homes from claims of ordinary negligence for providing care during the COVID-19 crisis.  The facilities are also immune from criminal liability.  Immunity does not apply to willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.  The law specifically says any actions taken as a result of staffing shortages or supply shortages are entitled to protection.

Critics say nursing homes should be held accountable for deficiencies, such as staffing shortages and poor infection control, that were a problem even before the pandemic.  Among the critics is Richard Mollot, executive director of the Long Term Care Community Coalition, which advocates for nursing home residents, NPR reports.

“Providing blanket immunity to nursing homes for any kind of substandard care, abuse or neglect is an extremely poor and dangerous idea anytime, and particularly so in regard to COVID-19,” Mollot told NPR.

Stimulus Checks for the Deceased

Several clients have called our office inquiring what to do with stimulus checks for their deceased loved ones. Many of these checks were delivered even thought the IRS knew the person was deceased.  Indeed they often have designated "DEC'D," after their name.

I wish I had a clear answer, but the answer is that no one knows.  So consider the following:

• Spousal Checks with a Surviving Spouse: Deposit. I am recommending that the spouse deposits the check.  
• Spousal Checks with Neither Surviving: It Depends. (I haven't been asked about this and don't even know that such a creature exists). Is the check already deposited?  Follow the guidance below depending on whether it is or isn't already deposited.   
• You Already Deposited the Check: Plan ahead. I am advising clients that have already deposited the money that they should expect to some day be required to pay it back, but that is based only upon a single statement by the Secretary of the Treasury.  
• You Haven't Deposited the Check: Safekeeping. If they haven't deposited the checks, I have suggested that clients keep it in a safe place so that it might later be returned.  I am not advising destruction of the checks, as apparently some have.  Why?  If there is fraud or misapplication of the funds, without proof that they did not negotiate the check, they may later be responsible for it. Of course, some would ask, isn't the safest place for the money a bank?  Understand that I don't feel I can suggest that you deposit the check if you haven't already.

To understand the complexity, consider the following, a reprint of an article entitled, "Heirs may have to return stimulus money sent to the deceased, but how and when?"

A lot of people who received stimulus payments for their dead parents or spouses are more confused than ever.

 There's new word that they have to return the money. But so far, there's been no official guidance on how to go about it. 

U.S. Treasury Secretary Steve Mnuchin who is quoted in the Wall Street Journal as saying heirs should be returning money that was sent in the name of someone who died. But so far, no one will elaborate.

"I couldn't find any guidance anywhere on what I was supposed to do with this check," said Debbie Carter of Olympia. She recently received a $1,200 stimulus check in the mail for her 79-year-old mother Ann Tate who died nearly a year ago. The check even has the abbreviation 'DECD', for deceased next to Ann Tate's name.Payments to the deceased have been a concern since the stimulus checks started going out. The government is not saying how many dead people received money but consumers are reporting them from across the country.

"I understand that they were trying to be helpful and wanted to get the money out the people as soon as they can to help them," Carter said. "But I think they made more of a mess out of it. We're not the only people, from what I've seen on the internet that have received these checks. And for the Treasury Department to have to go back through and find out who they sent these checks out to and try and get them back- I can't even believe what kind of a mess that's gonna be." 

Despite published reports that the government wants heirs to return economic impact payments sent to the deceased, as of late Wednesday there was no official comment and no information addressing the issue on either the U.S. Treasury or IRS websites.

Carter said her mother, who was an accountant, would consider it a waste.

"I can hear her in my head going, 'I can't believe they did this,'" Carter said.

Carter said she feels for people who really need the money and may have already spent it. She said she and her brothers understand the money is not theirs so they will not cash it. 

"Honestly, I was thinking about holding on to it and keeping it as a historical artifact," Carter said. "Because it's void after one year, so, I'm not taking the money out." 

 People are getting conflicting information from tax professionals about their rights to the money.  

Some people say they were told that if the person was living Jan. 2 their survivors could keep the cash. But in a transcript of a April 17 White House briefing President Trump was asked about checks to dead people. He said, "we'll get that back." 

Bottom line: If you still have stimulus money sent to someone who died, hang on to it if you can, and keep checking the IRS and Treasury websites for guidance on what to do. 

KOMO News reached out this morning to both agencies but neither has replied as of this publication. We'll let you know as soon as we hear anything.

Court Reverses Agency Decision Ignoring Appraised Value of Home for Purpose of Medicaid Penalty

A New Jersey appeals court reversed a final Medicaid agency decision that ignored an appraiser’s testimony that the actual value of an applicant’s house was less than the tax assessed value for purposes of imposing a penalty period. J.B. v. Camden County Board of Social Services (N.J. Super. Ct., App. Div., No. A-5665-17T4, May 5, 2020).

J.B. entered a nursing home. In preparation for applying for Medicaid, her son, acting under a power of attorney, sold her home for $17,500 to an acquaintance who was a realtor. The tax assessed value of the home was $104,700. J.B. applied for Medicaid, and the state imposed a 236-day penalty period because she sold her house for less than the market value.

J.B. appealed, arguing that the house was in poor condition, so $17,500 was fair market value. At a hearing, an appraiser testified that the market value of the house after it was sold and improvements had been made was $78,000, noting the appraisal would have been lower had it taken place either before improvements were made or had she known "the property was a hoarding situation and required a significant amount of repairs." Because there was no evidence of the condition of the house before it was sold, the administrative law judge accepted the appraised value of $78,000 and imposed a 142-day penalty period. In the final agency decision, the director of the state Medicaid agency did not discuss the appraised value and imposed a 329-day penalty period. J.B. appealed.

The New Jersey Superior Court, Appellate Division, reversed in part and remanded the case. The court agreed that the transfer was made for less than market value in order to qualify for Medicaid. The court ruled that the “appraiser's opinion that the fair market value of [J.B.’s] home at the time of the appraisal was $78,000 is well-supported by the evidence on the record as a whole” and the failure of the final agency decision to mention the appraisal “appears to be arbitrary and unreasonable.” The court remanded the case to the director to address this issue.

States Cannot Terminate Medicaid Benefits During Covid Crisis

A provision in one of the coronavirus relief packages signed into law prevents states from terminating Medicaid benefits during the pandemic.

The Families First Coronavirus Response Act (“CV Response Act”), signed into law on March 18, 2020, prevents states from terminating any Medicaid recipients who were enrolled in Medicaid on or after March 18, 2020 even if there is a change in circumstances that would normally lead to termination. All Medicaid recipients’ coverage must continue through the end of the month in which the public health emergency declared by the Secretary of Health and Human Services for COVID-19 ends.

If the state terminated a Medicaid recipient’s benefits after March 18, 2020, the state must make a good faith effort to contact the recipient and encourage him or her to reenroll. States may terminate coverage for individuals who request to be terminated or who are no longer residents of the state.

The continuous coverage requirement does not apply to individuals who were determined to be presumptively eligible for benefits. However, individuals who were determined ineligible before March 18, 2020, but who continue to receive coverage while they appeal the decision are entitled to continuous coverage.

For a description of all of the other benefits and terms of the Act, click here. 

For a list of Frequently Asked Questions (FAQ) about the Medicaid requirements under the law, click here.

Company’s Ability to Change Terms of Irrevocable Annuity Does Not Make It Available Resource

Medicaid applicant’s irrevocable annuity is not an available resource even though the company issuing the annuity has the authority to change its terms. Cushing v. Jacobs (U.S. Dist. Ct., D.N.J., No. 20-CV-130, March 25, 2020). 

Jane Cushing purchased an irrevocable annuity from the Croatian Fraternal Union of America (Croatian). The annuity had a provision that the president or treasurer of Croatian could change or waive the contract’s requirements. Ms. Cushing applied for Medicaid. The state decided that because the president or treasurer of Croatian could change its terms, the annuity was revocable. The state denied Ms. Cushing benefits due to excess assets. 

Ms. Cushing sued the state in federal court, arguing that the annuity is not an available resource, and filed a motion for summary judgment. The state argued that in a previous case (MM v. Division of Medical Assistance and Health Services, OAL Docket No. HMA 1057- 2019), a Medicaid applicant asked the president to change the terms of her annuity purchased through Croatian, so the state determined that the annuity was revocable and denied the applicant benefits. 

The U.S. District Court, District of New Jersey, granted Ms. Cushing summary judgment, holding that the annuity is not an available resource. According to the court, the annuity contract is “unambiguous on the issue of revocability,” and the prior case had no bearing on Ms. Cushing’s annuity. 

Little Noticed Provision in Trump Executive Order Allows Seniors to Opt Out of Medicare

Seniors are now permitted to opt out of Medicare.  A little-noticed section of a longer Executive Order on Medicare issued last November by President Trump directed the Secretary of Health and Human Services (HHS) to “revise current rules or policies to preserve the Social Security retirement insurance benefits of seniors who choose not to receive benefits under Medicare Part A.” (E.O. 13890, Sec. 11). The order took effect on April 3, 2020, but there appear to be no new proposed rules. 

You may wonder, "why?"  During President Obama’s administration, three retired federal employees – among them former Republican House Majority Leader Dick Armey -- sued the federal government because they wanted to drop their Medicare Part A coverage without losing Social Security benefits. They claimed participation in Medicare threatened their coverage under the Federal Employees Health Benefit (FEHB) program.

A U.S. district court judge dismissed the case in March 2011, a decision that was upheld the following year by a three-judge panel of the U.S. Court of Appeals for the District of Columbia, with then-judge Brett Kavanaugh writing for the majority that the federal statute offers the plaintiffs no path to disclaim their legal entitlement to Medicare Part A benefits.  The U.S. Supreme Court declined to review the decision.   

Although there exist no implementing rules, presumably anyone can now drop Medicare coverage without it affecting their Social Security retirement benefit.   John Kraus, one of the plaintiffs in the original suit, explained to ElderLawAnswers that “[t]here isn't any law, statute, or regulation that memorializes in the U.S. Code this linkage of the two programs. It is only found in the Social Security Administration's (SSA) Program Operations Manual System (POMS).”

When asked why he and his fellow plaintiffs wanted to separate from Medicare, Kraus explained that  the reasons

“are several.  The foremost is that one enrolled in Medicare cannot have a High Deductible Health Plan with a Health Savings Account. Secondly, for FEHB participants, their coverage becomes secondary to Medicare, without a premium reduction for FEHB coverage. Third, there is the issue of Medicare solvency, which could be a serious consideration in the near future. Lastly, there is the consideration of reduced choice and availability of health care providers because they are either leaving the Medicare program or not accepting additional Medicare recipients as new patients.”

Judith Stein, executive director of the Center for Medicare Advocacy, contends that allowing people to drop Medicare Part A would only weaken the program.  “We do not support allowing people to opt out of Part A,” Stein told ElderLawAnswers.  “[It’s] not good for Medicare in general, and not allowed by courts – to date.”  

CMS Announces Nursing Home Covid-19 Transparency Effort

On April 19th, 2020, the Centers for Medicare & Medicaid Services (CMS) announced new regulatory requirements that will require nursing homes to inform residents, their families and representatives of COVID-19 cases in their facilities. In addition, as part of President Trump’s Opening Up America, CMS will now require nursing homes to report cases of COVID-19 directly to the Centers for Disease Control and Prevention (CDC). This information must be reported in accordance with existing privacy regulations and statute. This measure augments longstanding requirements for reporting infectious disease to State and local health departments. Finally, CMS will also require nursing homes to fully cooperate with CDC surveillance efforts around COVID-19 spread.

CDC will be providing a reporting tool to nursing homes that will support Federal efforts to collect nationwide data to assist in COVID-19 surveillance and response. This joint effort is a result of the CMS-CDC Work Group on Nursing Home Safety. CMS plans to make the data publicly available. This effort builds on recent recommendations from the American Health Care Association and Leading Age, two large nursing home industry associations, that nursing homes quickly report COVID-19 cases.

“Nursing homes have been ground zero for COVID-19. Today’s action supports CMS’ longstanding commitment to providing transparent and timely information to residents and their families,” said CMS Administrator Seema Verma. “Nursing home reporting to the CDC is a critical component of the go-forward national COVID-19 surveillance system and to efforts to reopen America.”


“Scientific data derived from solid surveillance is a key element of recommendations to protect Americans, particularly our most vulnerable, from the devastating impact of COVID-19,” said CDC Director Dr. Robert Redfield. “This coordinated effort with CMS will allow CDC to provide even more detailed information to state and local health departments about how COVID-19 is affecting nursing home residents in order to develop additional recommendations to keep them safe.”

This data sharing project is only the most recent in the Trump Administration’s response to the COVID-19 pandemic. On February 6, CMS took action to prepare the nation’s healthcare facilities for the COVID-19 threat. On March 4, CMS issued new guidance related to the screening of entrants into nursing homes, informed by CDC recommendations. On March 10, CMS issued guidance related to the use of personal protective equipment (PPE) usage and optimization. On March 13, CMS issued guidance for a nationwide restriction on nonessential medical staff and all visitors, except in compassionate care situations. Shortly after that announcement, President Trump declared a national emergency, enabling the agency to take even stronger action. CMS then announced a suspension of routine inspections, and an exclusive focus on situations in which residents are in immediate jeopardy for serious injury or death, and implemented a new inspection tool based on the latest guidance from CDC. Additionally, on April 2, CMS issued a call to action for nursing homes and state and local governments. It included guidance that reinforced infection control responsibilities and urged leaders to work closely with nursing homes in their communities to determine needs for COVID-19 testing and personal protective equipment. The recommendations also urged state and local officials to work with nursing homes to designate certain sites for COVID-19-positive or COVID-19-negative patients to avoid further transmissions. On April 15, CMS announced the agency will nearly double payment for certain lab tests that use high-throughput technologies to rapidly diagnose large numbers of COVID-19 cases. This announcement built upon a March 30 announcement that hospitals, laboratories, and other entities can perform tests for COVID-19 on people at home and in other community-based settings outside of the hospital – including nursing homes.

CDC continues to work closely with CMS, state and local health departments, and nursing homes to inform national infection prevention and control policies and strategies to further support nursing homes, residents and families of residents.  CDC built a long-term care toolkit to be distributed to all 50 states to help increase infection prevention and control preparedness in nursing homes and provide remote tools to further assist these important healthcare providers.  

In addition, CDC rapidly sent teams of infection control experts to support state and local health departments during the first COVID-19 outbreak in a nursing home in the U.S. Teams were on the ground within 36 hours of the notification to assist with the implementation of measures to detect and contain additional infections in the community.  CDC continues to work closely with state and local health departments to assist long-term care facilities with COVID-19, with on the ground support provided to more than 30 jurisdictions and remote technical assistance from infection control experts across the U.S. with plans to provide additional support underway.

CMS increases Medicare Payment for High-Production COVID-19 Lab Tests, Expands Testing Capacity and Monitoring in SNF's

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The Centers for Medicare and Medicaid Services (CMS) today announced Medicare will nearly double payment for certain lab tests that use high-throughput technologies to rapidly diagnose large numbers of 2019 Novel Coronavirus (COVID-19) cases. This is another action the Trump Administration is taking to rapidly expand COVID-19 testing, particularly for those with Medicare, including nursing home residents who are among the most vulnerable to COVID-19 and most affected by COVID-19 outbreaks across the country.

“CMS has made a critical move to ensure adequate reimbursement for advanced technology that can process a large volume of COVID-19 tests rapidly and accurately,” said CMS Administrator Seema Verma. “This is an absolute game-changer for nursing homes, where risk of Coronavirus infection is high among our most vulnerable.”

Medicare will pay the higher payment of $100 for COVID-19 clinical diagnostic lab tests making use of high-throughput technologies developed by the private sector that allow for increased testing capacity, faster results, and more effective means of combating the spread of the virus. High-throughput lab tests can process more than two hundred specimens a day using highly sophisticated equipment that requires specially trained technicians and more time-intensive processes to assure quality. Medicare will pay laboratories for the tests at $100 effective April 14, 2020, through the duration of the COVID-19 national emergency.

Increasing Medicare payment for these tests will help laboratories test in nursing home communities that are vulnerable to the spread of COVID-19. On March 30, 2020, CMS announced that Medicare will pay new specimen collection fees for COVID-19 testing for homebound and non-hospital inpatients, to help facilitate the testing of homebound individuals and those unable to travel. As a result of these actions, laboratories will have expanded capability to test more vulnerable populations, like nursing home patients, quickly and provide results faster.

For other COVID-19 laboratory tests, local Medicare Administrative Contractors (MACs) remain responsible for developing the payment amount in their respective jurisdictions. MACs are currently paying approximately $51 for those tests. As with other laboratory tests, there is generally no beneficiary cost-sharing under Original Medicare.

This announcement builds upon recent CMS actions to expand testing for COVID-19. On March 30, 2020, CMS announced that hospitals, laboratories, and other entities can perform tests for COVID-19 on people at home and in other community-based settings outside of the hospital. This will both increase access to testing and reduce risks of exposure. Additionally, CMS took action to allow healthcare systems, hospitals, and communities to set up testing sites to identify COVID-19-positive patients in a safe environment.

To keep up with the important work the Task Force is doing in response to COVID-19, visit www.coronavirus.gov. For a complete and updated list of CMS actions, and other information specific to CMS, please visit the Current Emergencies Website.

For more information on this payment announcement, please visit:

https://www.cms.gov/files/document/cms-2020-01-r.pdf

GoodRx Launches Telemedicine Comparison Service

GoodRx, the Californian startup best known for its pharmaceutical-cost-transparency tool, is rolling out a new feature that lets patients compare telemedicine prices and service options, according to an article in Mobihealthnews. 

Dubbed GoodRx telehealth marketplace, users are able to select the type of condition they are looking to address. Patients can select one of 100 conditions, which run the gamut from cold and flu symptoms to erectile dysfunction, and even include COVID-19. 

After the medical issue is selected, the site redirects patients to a list of telehealth services that treat that condition, along with the estimated price and pharmacy information. For example, a patient can search to see if a specific telehealth service has pharmacy pickup or medication delivery. 

The startup is pitching this as a way to get care during the coronavirus pandemic. 

“As Americans stay home, and with our front-line hospitals and clinics experiencing tremendous demand, we want to help people get access to services for a range of medical issues,” Doug Hirsch, co-CEO and cofounder of GoodRx, said in a statement. “Our goal with the telehealth marketplace is to give people all their options, services and prices, so they can easily get the treatment they need.”

Telemedicine has seen a sharp increase in usage in the last few months as the cases of the coronavirus have spiked. Providers are pitching telemedicine as a way to provide individuals with care, while practicing responsible social distancing and limiting unnecessary travel. Regardless, telemedicine is essential to many aging in place plans.  The reliance on telemedicine in response to the virus makes telemedicine more readily available and familiar to a wider segment of the population, making incorporation into aging in lace plans easier.  

"If there are any silver linings it's that the [American Medical Association] along with many other organizations have been working for telehealth adoption for some time. Obviously it is really having its moment right now and [has been] able to step up to keep providers and patients safe on the front lines," Meg Barron, vice president of Digital Health Strategy at the American Medical Association (AMA), said during the MassChallenge coronavirus innovation summit, last week. 

As telemedicine takes center stage, consumers and providers alike are learning more about the technology. Last week the AMA launched the Telemedicine Quick Reference Guide, aimed at helping clinicians figure out best practices for implementing the tech. The guidelines cover everything from policy and coding to implementation.