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

ID 176944992 © Onassisworld | Dreamstime.com

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.

COVID-19: Caregiver Action Network Tips for Family Caregivers

If you are an in-home caregiver the rapid spread of COVID-19 has and will continue to affect how you do your job. The Caregiver Action Network (CAN) has posted some Tips for Family Caregivers.  CAN continues to recommend following the guidance of the CDC.

Tips include:

• Finding support through support groups, churches or community centers;
• Refilling prescriptions and making sure you are fulling stocked on medical supplies;
• Only going to the Emergency Room for emergencies;
• Knowing your own risk factors – chronic conditions or immunosuppressed;
• Being aware of any changes to visitation policies;
• Calling ahead before going to any medical appointments; and
• Preparing for possible quarantine.

CAN also offers several useful resources:

• Crisis Symptom Reporting Guide;
• Medication Checklist; and a
• Patient File Checklist.

CAN is a leading family caregiver organization working to improve the quality of life for the more than 90 million Americans who care for loved ones with chronic conditions, disabilities, disease or the frailties of old age. It is a nonprofit organization providing education, peer support and resources to family caregivers across the country free of charge.

Beware Coronavirus Scams that Exploit Unity and Commitment

We’re witnessing a phenomenal solidarity of people around the world stepping up during the global emergency of Covid-19. Apparently, cybercriminals waste no time to exploit it to their advantage. The number of coronavirus-themed scams and security incidents related to it has been steadily increasing over the last couple of months. Hackers are preying on people’s fears, spreading disinformation, and monetizing panic.

“This may be the most dangerous time to be online,” says Daniel Markuson, a digital privacy expert at NordVPN Teams. “And those least informed are in most danger. Hackers are exploiting very real fears about the coronavirus through fake emails and scam websites. People are giving up private information and downloading malware without a second thought.”  NordVPN Teams is a cybersecurity solution for business from the world’s most advanced VPN service provider NordVPN. 

The following are the most common coronavirus scams and security incidents:

Emails from “health authorities.” When Covid-19 was just ramping up, cybercriminals were already on it. Pretending to be health officials, they sent out emails with instructions on how to prevent coronavirus infection. These instructions, disguised as PDF, mp4, docx files, contained malware, which harvested sensitive data or took over infected devices. “That’s the granddaddy of coronavirus scams,” says Daniel Markuson. “Fake emails from WHO, CDC, and other health authorities have been circulating since January, containing malware or phishing scams instead of life-saving information.“

Fake coronavirus maps. A black world map with expanding red dots. The now-famous Johns Hopkins University map is a source of much-needed information that is accessible to all. Hackers used Johns Hopkins University data to create malware-ridden apps and spread them all over the web to unsuspecting users. This resulted in cybercriminals gaining access to people’s phone cameras, microphones, and text messages.

An ecosystem of scam websites. Every day sees the launch of a thousand fraudulent coronavirus websites. They host phishing scams, distribute malware, or sell non-existent cures and supplements. “Covid-19 and coronavirus-themed websites are growing at an exponential rate,” says Daniel Markuson from NordVPN Teams. “Among them, there’s a large number of suspicious or outright malicious websites.”

Covid-19 weaponized in cyberwarfare. In February, an email went viral in Ukraine. Supposedly coming from the health ministry, it reported new coronavirus cases in the country, sparking violent protests and clashes with the police. The email was fake, and it came from outside of Ukraine. Russia is among the suspects because, as the email went viral, its state-sponsored hackers attacked Ukrainian targets with malware hidden in Covid-19 documents. And that’s just the tip of the iceberg. South Korean and Vietnamese cybersecurity firms reported coronavirus-themed attacks coming from North Korea and China, respectively. In India, a Pakistani-sponsored agent used a decoy health advisory document to collect sensitive information from Indian institutions.

Cyberattack on the US Health and Human Services Department. On March 15, cyberattackers tried to overload the Department’s servers with a DDoS attack (an attempt to flood and crash a service with superfluous requests). The Department's servers suffered millions of hits over several hours, but this failed to make a dent in its systems. US officials suspect that the attack came from foreign actors. “No worse time than a global health emergency to DDoS the Health Department. Ethically, this is one of the worst things you can do — it could’ve cost lives,” says Daniel Markuson, the digital privacy expert at NordVPN Teams.

The virus of the mind. Hackers know that scared people tend to make irrational decisions. This is exactly why cybercriminals have been using coronavirus conspiracy theories to grab attention and exploit fear. By claiming to have a secret coronavirus cure or a new vaccine against Covid-19, they use social engineering to extract confidential data or bait users into downloading malware. “Not a piece of cybersecurity advice, just a general one — check your sources and prioritize what health authorities and healthcare professionals say over anything else.”

Thanks to NordVPN Teams for putting this information together, and to Today's Caregiver, for distributing it.  

NordVPN Teams offers a full range of features to ensure convenience and powerful digital protection for small and medium enterprises, freelancers, and remote teams through advanced 256-bit encryption, including ad and malware blocking, unsecured traffic prevention, automatic connection on Wi-Fi networks, and 24/7 customer support with a dedicated manager.

3-Day Hospital Stay Rule Waived for SNF Transfers During the National Emergency

On the heels of the declaration of a national emergency, the Centers for Medicare & Medicaid Services (CMS) is waiving the requirement that Medicare beneficiaries must spend at least three days in a hospital before qualifying for coverage in a skilled nursing facility (SNF) for those beneficiaries who need to be transferred as a result of a disaster or emergency. 

In addition, CMS states that “for certain beneficiaries who recently exhausted their SNF benefits,” SNF coverage will be renewed without first having to start a new benefit period.  

For more information see CMS’s “COVID-19 Emergency Declaration Health Care Providers Fact Sheet.” 

Federal Elder Fraud Hotline Announced

Attorney General Barr announced the launch of a National Elder Fraud Hotline, which will provide services to seniors who may be victims of financial fraud.  The Hotline will be staffed by experienced case managers who can provide personalized support to callers.  Case managers will assist callers with reporting the suspected fraud to relevant agencies and by providing resources and referrals to other appropriate services as needed.  When applicable, case managers will complete a complaint form with the Federal Bureau of Investigation Internet Crime Complaint Center (IC3) for Internet-facilitated crimes and submit a consumer complaint to the Federal Trade Commission on behalf of the caller.  The Hotline’s toll free number is 833-FRAUD-11 (833-372-8311).

For the second year, the Department of Justice and its law enforcement partners also took comprehensive action against the money mule network that facilitates foreign-based elder fraud. Generally, perpetrators use a “money mule” to transfer fraud proceeds from a victim to ringleaders of fraud schemes who often reside in other countries. Some of these money mules act unwittingly, and intervention can effectively end their involvement in the fraud. The FBI and the Postal Inspection Service took action against over 600 alleged money mules nationwide by conducting interviews, issuing warning letters, and bringing civil and criminal cases. Agents and prosecutors in more than 85 federal district participated in this effort to halt the money flow from victim to fraudster. These actions against money mules were in addition to the criminal and civil cases announced as part of this year’s elder fraud sweep.

Only One-Third of Seniors Think They Can Age in Place

There is a significant gap between the number of U.S. adults who want to age in place and those who actually believe they will be able to do so, according to a new national survey  The survey  was conducted by Edelman Intelligence on behalf of Fresenius Medical Care North America (FMCNA), a product and solutions company specializing in kidney care, and considered 2,750 U.S. adults.  The survey found that only 65% of surveyed adults say they want to age in place. The survey discovered that only 33% — roughly half — believe they’re equipped to make that happen.

This may actually be the first study that suggests that perceived inability to achieve the goal of aging in place is driving those who otherwise might want to age in place to compromise their objective.  Why?  Because studies typically put the number of seniors desiring to age in place at north of ninety percent.  Are seniors abandoning the objective because they are becoming disillusioned in the objective as unattainable?  That would be unfortunate since the objective is quite attainable with planning!

The other takeaway from the study is the large percentage of adults who do not believe they will be able to age in place.  Of course the survey does not answer the question whether the adults are likely to be correct, or are simply misinformed, or as mentioned disillusioned.  But the survey does isolate the perceived or subjective reasons for pessimism, which is important and useful information.  

There are a variety of reasons some older adults doubt their ability to age in place.  Of the survey participants, 29% said they don’t think they’ll have enough money to stay in their homes as they grow older. Another 24% of the adults said they don’t believe their homes are suitable to their needs as they age.  Nearly one-fifth of surveyed adults identified loneliness as an issue, with another 17% identifying proximity to family and friends as a challenge.

FMCNA CEO Bill Valle said in a report that accompanied  the survey: 

“We wanted to explore the perceptions of aging in place and uncover barriers, including social determinants of health and misperceptions around feasibility.  Given an aging population and an increase in chronic disease, innovations that help more people remain in their homes for longer will be welcomed by patients and the health system alike.”

Generally, the FMCNA survey found that both preference and perceived ability to age in place increased with age, with the greatest generation and baby boomers being more likely to pursue aging in place than millennials or those in Generation Z.

Although not by a large margin, rural citizens are more likely than urbanites to want to age in place.

The survey also highlighted the significant role that social determinants of health play in whether people are able to age in place. The key takeaway: the more determinants they’re challenged with, the less likely they are to believe they can age in place.

“This research further demonstrates the importance of addressing social determinants of health to improve patients’ quality of life and the chances for aging in place successfully,”  “It also suggests we must continue to help educate patients about all the resources now available for people to receive care in their own home,”

Felicia Speed, corporate director of social work services at FMCNA, said in a statement.

The survey results may have been impacted by seniors’ general lack of knowledge about what kind of care can be delivered in the home and how well it can be delivered. Kidney patients, for example, still aren’t so sure whether they can receive dialysis anywhere other than a clinic or hospital.

Roughly 30 million people in the U.S. have chronic kidney disease (CKD).  In-home dialysis and kidney care is typically far less expensive than facility-based treatment. That’s why the Trump administration has experimented with implementing incentives for companies that have kidney-related home offerings.

Barriers remain: 50% of dialysis patients believe the quality of care would be better in a clinic or hospital, compared to the only 25% who believe the quality would be better at home, according to the FMCNA survey.  However, 54% said that they would choose at-home dialysis if they knew that the quality of care would be equal to what they receive in hospitals or clinics.

More than 80% of CKD patients prefer to age in place, but fewer than half of them believe they will be able to.  “With adults living longer than ever before and a looming shortage in caregivers, it is critical for the health care community to commit to a future where older adults can age on their own terms,” Valle said.