by Thomas D. Begley, Jr., CELA

The key issue concerning trusts “for the sole benefit of” is availability. In a private letter, HCFA, now CMS, has taken the position that a trust established for the sole benefit of a community spouse under HCFA Transmittal 64 is an available resource.^[1] HCFA maintained that there is a material difference between a standard annuity and an “annuitized” trust. HCFA states:

a standard annuity can protect the funds used to purchase the annuity from being counted as resources in determining eligibility for Medicaid. However, there is a fundamental difference between a standard annuity and the “annuitized” trust you established. A standard annuity requires the actual purchase of a commodity; i.e., the annuity itself. A specific amount of money is given to the entity selling the annuity, in return for which the entity contractually agrees to provide an income stream for a specified period of time. Upon completion of the transaction, the buyer no longer owns the funds used to purchase the annuity. Instead, the buyer owns the annuity itself. If the annuity is irrevocable, as most annuities are, the buyer cannot reclaim ownership of the funds used to purchase the annuity. The buyer is only entitled to the income stream purchased and only for as long as the annuity stipulates. This is essentially the same as the purchase of any item or product where funds are exchanged for ownership of something else.

It is important to note that the letter from HCFA is not law or policy. It is an interpretation of policy as articulated in HCFA Transmittal 64. Under this letter, only the amount of the CSRA could be able to be placed in a “sole benefit of” trust. HCFA Transmittal 64 clearly compares the transfer of assets to a community spouse with the transfer of assets to a trust for the sole benefit of a community spouse.^[2] The document clearly states “when transfers between spouses are involved, the unlimited transfer exception should have little effect on the eligibility determination, primarily because resources belonging to both spouses are combined in determining eligibility for the institutionalized spouse.” Thus, resources transferred to a community spouse are still be considered available to the institutionalized spouse for eligibility purposes.

[1] Letter dated April 16, 1998, from Robert A. Streimer, Disabled and Elderly Health Programs Group, Center for Medicaid and State Operations, Health Care Financing Administration, to Jean Galloway Ball.

[2] HCFA Transmittal 64 § 3258.11.

by Joyce Frieden
News Editor, MedPage Today

CHICAGO — A proposal by the Centers for Medicare & Medicaid Services (CMS) to change the way Medicare pays for drugs under the Part B program would hurt physician practices, the American Medical Association said at its annual meeting here.
“This is a patient care issue and an access issue,” said Heather Smith, MD, an ob/gyn in Bronx, N.Y., who spoke on behalf of the American Congress of Obstetricians and Gynecologists. “This will impact care of our patients, especially those with ovarian cancer.”

The AMA House of Delegates passed a resolution Wednesday asking that CMS withdraw its proposal and, if that doesn’t happen, that the AMA lobby Congress block the proposal’s implementation. The proposal, if put into place, “would significantly undermine the ability of physician practices to meet the significant administrative and financial burdens associated with the rapidly evolving healthcare environment,” according to the resolution.
The CMS plan would replace the current Medicare reimbursement — the average sales price of the drug plus a 6% add-on fee to cover costs — with a rate of the average sales price plus 2.5%, plus a flat fee of $16.80 per drug per day. The flat fee would be adjusted at the beginning of each year.

For full story go to: http://www.medpagetoday.com/MeetingCoverage/AMA/58630

by Thomas D. Begley, Jr., CELA

This is the first of a series of three articles dealing with lien resolution in personal injury cases.

General

Types of Liens

Prior to making distribution in the settlement of a class action or mass tort lawsuit, a number of lien issues may need to be addressed, depending on the nature of the case, the elements of the recovery, and the population of claimants. These issues may include reimbursement claims asserted by Medicaid, Medicare, Medicare Advantage and Prescription Drug Plans, ERISA Plans, Federal Employee Health Benefits, Federal Medical Care Recovery Act, Veterans Administration and TRICARE Claims, Welfare Liens, Mental Health Liens, Traumatic Brain Injury Fund, Catastrophic Illness and Children’s Relief Fund, Victims of Crime Compensation, State Worker’s Compensation Claims, Federal Employee Compensation Act, Hospital Liens, Child Support and Division of Disabilities (DDD).

Subrogation/Reimbursement

It is important to understand the differences between these two related concepts.

–  Subrogation. Subrogation is the substitution of one party (an insurer) for another party (the insured) in the assertion of rights against a third party. It allows the insurer to assert the rights and claims of the insured. Subrogation rights may arise from contract (“conventional” subrogation), from legal principle or doctrine (“legal” or “equitable” subrogation), or from legislation (“statutory” subrogation).

–  Reimbursement. Reimbursement allows the insurer to seek repayment from the insured when the insured receives funds from another party. Reimbursement rights arise from contract, with their scope and enforceability determined by the contract’s terms, subject to applicable limiting law.

Derivative Claims

Liens are generally enforceable against the settlement of the injured party on whose behalf benefits are paid, but it is unlikely they are enforceable against proceeds of derivative claims of others arising from the incident.[1] For example, wrongful death claims would not generally be subject to liens because they are property of persons other than the decedent; in contrast, a survival claim, as property of a decedent’s estate, may be subject to a lien.[2] Similarly, allocation of loss of consortium claims to those who do not have responsibility for medical bills, such as a spouse or child of an injured party, may in some circumstances serve to reduce the amount attachable by a health care lien.

Medicaid Liens

Assignment to State of Rights against Third Parties

As a condition of Medicaid eligibility, a Medicaid applicant is required to assign to the state any rights to payment of medical care from any third party.[3] This is essentially a statutory right of subrogation. Federal law further requires that each state Medicaid program have procedures for determining the legal liability of third parties to pay for medical assistance provided by the state’s Medicaid plan, and for reimbursement of the cost of medical assistance provided, whenever recovery is feasible.[4] In New Jersey, the Attorney General is responsible for enforcing any rights against third parties or recovery of liens.[5] When an individual brings an action for damages against a third party, written notice must be given to the director of the Division of Medical Assistance and Health Services. In addition, such individual must promptly notify the Division of any recovery from a third party. The recipient of a third-party recovery must immediately reimburse the division from the proceeds of any settlement, judgment, or other recovery.[6]

Extent of Lien

A Medicaid lien applies only to the extent of medical assistance related to the injury and only to payments made from the date of the injury to the date of the settlement.

Reduction of Lien

There are two ways to reduce a Medicaid lien.

–  Procurement Costs. The Medicaid lien is subject to an automatic reduction for a pro rata share counsel fees, costs, or other expenses incurred by the recipient or the recipient’s attorney.[7] It is important not to overlook costs. If the attorney’s fee is 33% and the costs of the case represent 5% of the recovery, the procurement-cost reduction is 38%, not 33%.

–  Ahlborn Reduction. The United States Supreme Court has held that a state Medicaid agency may recover only from that portion of a settlement earmarked as compensation in respect of medical expenses, and where there is no such allocation, the agency may only recover a proportionate share of its claim, determined by the ratio that the settlement amount bears to the reasonable value of the total claim.[8]

Medicare

The Lien

The Medicare Secondary Payer Act (MSPA) governs all claims for recovery of Medicare payments for accidents or injuries.[9] Under the MSPA the federal government has a statutory lien.

Responsibility for Payment

–  Party Making Payment. The MSPA provides that Medicare may not make payments when payment has been made or can reasonably be expected to be made under a workers’ compensation program, under an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance, unless the Medicare payment is made as a “conditional payment.”[10] When there is a “conditional payment,” the United States may bring an action against the “primary plan” responsible for payment and the United States shall be subrogated for payment of those expenses from the primary plan.[11] If it is necessary for CMS to take legal action to recover from the primary payer, CMS may recover double damages.[12]

–  Party Receiving Payment. CMS also has a right of recovery from any person or entity that receives a third-party payment. These include a beneficiary, provider, supplier, physician, attorney, state agency, or primary insurer that has received a third party payment.[13]

–  Timing of Payment. If a beneficiary or other party receives a third party payment, the beneficiary or other party must reimburse Medicare within 60 days.

Procurement Costs

Medicare will grant a credit against its reimbursement claim for a proportionate share of the necessary procurement costs incurred in obtaining the underlying personal injury settlement. Procurement costs are court costs and attorneys’ fees.[14] The attorneys’ fees and expenses are calculated as a percentage of the total settlement sum and serve as the same percentage reduction of the conditional payment amount (total attorneys’ fees and costs/total settlement amount = percent reduction).

Compromise

Cases will be compromised where there is questionable liability. In such cases, counsel notifies Medicare of the strengths and weaknesses of the defendant’s case in order to justify a reduction of the Medicare claim. The beneficiary is entitled to an appeal of an adverse decision on the request for waiver or compromise pursuant to § 870c of the Social Security Act. The request can be pre- or post-settlement. Requests for compromise must be accompanied by the amount of the pre-settlement offer.[15]

[1] Admin. Comm. of Walmart Stores, Inc. v. Gamboa, 479 F.3d. 538 (8th Cir. 2007).

[2] Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010).

[3] 42 U.S.C. § 1396k(a)(1)(A); N.J.S.A. 30:4D-7.1(c).

[4] 42 U.S.C. § 1396a(a)(25)(A), (B), (H).

[5] N.J.S.A. 30:4D-7.1(a).

[6] N.J.S.A. 30:4D-7.1(b).

[7] N.J.S.A. 30:4D-7.1(b).

[8] Arkansas Dept. of Health and Human Servs. v. Ahlborn, 126 S. Ct. 1752 (2006).

[9] 42 U.S.C. § 1395y(b)(2).

[10] 42 U.S.C. § 1395y(b)(2)(B).

[11] 42 U.S.C. § 1395y(b)(2)(B); 42 C.F.R. § 411.24(b).

[12] 42 C.F.R. § 411.24(c)(2).

[13] 42 C.F.R. § 411.24(g).

[14] 42 C.F.R. § 411.37c.

[15] 42 U.S.C. § 1395y.

Excerpted from an article by Lee Ann Griffen in the Florida Health Care Association’s newsletter
“Pulse”.

“Competent residents engaging in consensual sexual activity is not a cause for undue concern in
assisted living, especially considering many residents have their own rooms which they call
home. CMS’ interpretation of Home and Community-Based Characteristics for assisted living
clients who receive Medicaid services takes this further, providing individuals the right to have
visitors of their choosing at any time.

Assisted living communities may specialize in accommodating residents who have cognitive
impairments. It’s important to recognize that cognitive impairments do not necessarily make a
person ineligible for sexual activity. However, administrators and professional staff must try to
differentiate between intimacy and abuse. There is no one-size-fits-all approach to sexuality and
dementia.

A clinical assessment must occur in order to determine consent. Guidance may be found at
www.nih.gov/ ; search Intimacy and Sexuality. It should be noted that a person’s right to make
choices is not invalidated solely because the staff does not agree. Staff should be educated on
distinguishing between their own values and the values of the residents.

by Thomas D. Begley, Jr., CELA

For many years a debate has raged as to whether Medicare’s interests must be considered with respect to future medical payments in the context of a third party liability settlement (“TPLS”). The issue is simple. If a plaintiff in a TPLS receives money to pay for future medical care, is he free to pocket that money and send the bill for the future medical care to Medicare? Under the Medicare Secondary Payer Act (“MSPA”), Medicare is prohibited from making a payment for future medicals to the extent that such payment has been made under liability insurance. Therefore, if a liability insurance company or self-insured defendant pays money to a plaintiff for future medical care, the argument goes that Medicare cannot pay for that care.

In 2013, the Centers for Medicare and Medicaid Services (“CMS”) issued a Notice of Proposed Rulemaking (“NPRM”), but then voluntarily withdrew it in 2014. As a result, parties have been left to their own devices in determining how to address this issue. Some commentators believe that absent enforceable regulations that identify the standards by which future medicals are to be measured in the liability context, the federal government has no right to claim an interest in future medicals as part of the settlement. On the opposite end of the spectrum, commentators observe that CMS interprets the MSPA so that it is applicable to TPLS as well as Worker’s Compensation claims. The correct position may lie somewhere in between. The real answer may be to develop an analysis of how much of the TPLS was for future medicals and how much for other elements of damages and to set the future medical money aside, so that Medicare is not billed until that portion of the settlement is exhausted.

Once a Medicare Set-Aside Arrangement (“MSA”) has been considered, the next question is how much is necessary to fund it. If future medicals have been plead or claimed and future medicals are specifically released in a Release signed in connection with the third party liability (“TPL”) settlement, then it is likely that Medicare’s interests must be considered. That raises the question as to how to calculate the amount of the settlement intended for future medical care. It is unlikely that CMS would accept a figure agreed upon by the parties absent court testimony and a court finding.

It is important to remember that in a TPL case, the award seldom pays 100 cents on the dollar for future medicals. Issues in these cases, such as disputed liability or causation, policy limits, statutory caps and derivative claims, often mean that TPL cases are resolved for less than the full measure of damages sustained. The Garretson Resolution Group recommends a starting point for a maximum amount may be identified through review of a plaintiff’s life care plan and other evidence of the dollar assigned to particular damages other than future medicals. These would include procurement costs, liens, past medicals, pain and suffering, loss of future earning capacity, etc. Garretson outlines a four-step process:

1. Were future medicals plead or released as part of the settlement, judgment or award?

2. Does the plaintiff require future injury-related care?

3. Does the settlement award “compensate” plaintiff for future medicals based on objective decisional future medical allocation methodology?

4. How much did the settlement award compensate based on objective decisional future medical allocation methodology?

By analyzing the settlement to figure out how much would be appropriate for future medicals and then determining the ratio of the plaintiff’s net proceeds to the total damages, a percentage for future medicals can be determined. This is the amount “compensated” for future medicals within the settlement or award. This would only be the amount necessary to set aside to satisfy CMS.

This approach is different from the traditional approach. The traditional approach to funding an MSA is to determine what the future medical costs to be paid by Medicare would be and set that money aside without regard to whether the plaintiff actually recovered that amount for future medicals. Under the Garretson approach, the only amount to be set aside would be the actual funds recovered by the plaintiff, which could be considerably less than the total future medicals.

Once the amount of the MSA has been determined, who shall administer those funds? One option is to use a professional custodian such as Medi-Vest. The advantage to the professional custodian is that they know the rules. They use the set-aside funds only to pay for medical care that Medicare would cover. The plaintiff may be receiving other medical care that would not be covered by Medicare and use of the MSA funds for payment of that care would be inappropriate. A professional custodian will also take advantage of the discounts offered to Medicare, rather than paying full retain prices. This makes the funds last longer. The other option is to turn over the MSA amount to the plaintiff to be self-administered. The advantage to this approach is that it avoids paying the professional custodian’s fees. There is usually a set-up fee and an annual maintenance fee. A disadvantage to a self-administered MSA is the plaintiff does not know the rules and often uses the funds for other purposes such as covering delinquent mortgage payments or payments on car loans. As a practical matter, if the Set-Aside is a $100,000 or more, it usually makes sense to engage the services of a professional custodian. If the settlement is less than $100,000, the cost of a professional custodian are not warranted and a self-administered MSA is more appropriate.

The next consideration for an MSA is whether or not a Structured Settlement should be considered. CMS requires that an MSA be funded with a lump sum sufficient to cover two year’s medicals plus the first surgery, but the rest can be funded with a Structured Settlement. Since most of the funds will not be needed right away, it often makes sense to use the Structured Settlement. Statistics show that where a Structured Settlement is used, the cost is only 52% of funding an MSA with a lump sum. This is because the Structure does not have to pay out for a period of time. The Structure can also take advantage of the plaintiff’s rated age.

by Thomas D. Begley, Jr., CELA

Once a Medicare Set-Aside Arrangement (“MSA”) has been considered, the next question is how much is necessary to fund it. If future medicals have been plead or claimed and future medicals are specifically released in a Release signed in connection with the third party liability (“TPL”) settlement, then it is likely that Medicare’s interests must be considered. That raises the question as to how to calculate the amount of the settlement intended for future medical care. It is unlikely that the Centers for Medicare and Medicaid Services (“CMS”) would accept a figure agreed upon by the parties absent court testimony and a court finding.

It is important to remember that in a TPL case, the award seldom pays 100 cents on the dollar for future medicals. Issues in these cases, such as disputed liability or causation, policy limits, statutory caps and derivative claims, often mean that TPL cases are resolved for less than the full measure of damages sustained. The Garretson Resolution Group recommends a starting point for a maximum amount may be identified through review of a plaintiff’s life care plan and other evidence of the dollar assigned to particular damages other than future medicals. These would include procurement costs, liens, pain and suffering, loss of future earning capacity, etc. Garretson outlines a four-step process:

1. Were future medicals plead or released as part of the settlement, judgment or award?

2. Does the plaintiff require future injury-related care?

3. Does the settlement award “compensate” plaintiff for future medicals based on objective decisional future medical allocation methodology?

4. How much did the settlement award compensate based on objective decisional future medical allocation methodology?

By analyzing the settlement to figure out how much would be appropriate for future medicals and then determining the ratio of the plaintiff’s net proceeds to the total damages, a percentage for future medicals can be determined. This is the amount “compensated” for future medicals within the settlement or award. This would only be the amount necessary to set aside to satisfy CMS.

This approach is different from the traditional approach. The traditional approach to funding an MSA is to determine what the future medical costs to be paid by Medicare would be and set that money aside without regard to whether the plaintiff actually recovered that amount for future medicals. Under the Garretson approach, the only amount to be set aside would be the actual funds recovered by the plaintiff, which could be considerably less than the total future medicals.

by Thomas D. Begley, Jr., CELA

For many years a debate has raged as to whether Medicare’s interests must be considered with respect to future medical payments in the context of a third party liability settlement (“TPLS”). The issue is simple. If a plaintiff in a TPLS receives money to pay for future medical care, is he free to pocket that money and send the bill for the future medical care to Medicare? Under the Medicare Secondary Payer Act (“MSPA”), Medicare is prohibited from making a payment for future medicals to the extent that such payment has been made under liability insurance. Therefore, if a liability insurance company or self-insured defendant pays money to a plaintiff for future medical care, the argument goes that Medicare cannot pay for that care.

In 2013, the Centers for Medicare and Medicaid Services (“CMS”) issued a Notice of Proposed Rulemaking (“NPRM”), but then voluntarily withdrew it in 2014. As a result, parties have been left to their own devices in determining how to address this issue. Some commentators believe that absent enforceable regulations that identify the standards by which future medicals are to be measured in the liability context, the federal government has no right to claim an interest in future medicals as part of the settlement. On the opposite end of the spectrum, commentators observe that CMS interprets the MSPA so that it is applicable to TPLS as well as Worker’s Compensation claims. The correct position may lie somewhere in between. The real answer may be to develop an analysis of how much of the TPLS was for future medicals and how much was for other elements of damages. Then set aside only the amount received for future medicals, not the total anticipated costs of what the future medicals will actually be.

by Thomas D. Begley, Jr., CELA

Countable Asset for SSI and Medicaid

A question arises as to whether assets held in an MSA are countable for SSI and Medicaid purposes. This has been addressed by CMS in the WC context, but the same line of reasoning should apply to third party liability cases. CMS has stated that:[1]

Medicare Set-Aside Arrangements are not subject to any special treatment under Medicaid resource rules. These funds should be evaluated to determine whether they meet the legal definition of a resource for Supplement Security Income (SSI) and, therefore, Medicaid purposes, i.e., ‘cash or other assets that an individual owns and could convert to cash to be used for his or her support and maintenance.’ The funds must be in interest-bearing accounts. The funds may meet the SSI/Medicaid resource definitions.

There may be cases in which funds in a Medicare Set-Aside Arrangement are placed into trusts, possibly trusts that would satisfy the definition of “special needs trusts” under Section 1917 of the Social Security Act. In those cases, the funds might not be a countable resource, but that result would be solely on the basis of Medicaid, not Medicare, rules.

If the MSA funds are wrapped into a special needs trust, they would be considered inaccessible for SSI-related Medicaid and Food Stamp purposes. It is always good practice to have a professional trustee to administer a Self-Settled Special Needs Trust, because of the complexity of the issues involved. Most professional trustees will then retain the services of a professional custodian, such as MediVest Advisors, to administer the MSA subaccount. If the size of the MSA is significant, the cost can be sharply reduced by funding the MSA with a Structured Settlement. The average savings by utilizing a Structured Settlement, rather than a lump sum, is 46%.[2]

The Structured Settlement payment stream is paid directly to the special needs trust, and the trustee allocates the funds to the MSA subaccount.

[1] CMS Memorandum Questions and Answers, July 11, 2005, Q & A 13.

[2] Policy Clarifications—Food Stamp—Medicaid—SSI, PMS 13182340, PFS 13182540 (revised July 20, 2007).

by Thomas D. Begley, Jr., CELA

Medicare Secondary Payer Act. While there is still some controversy as to whether a Medicare Set-Aside Arrangement is appropriate in a Third Party Liability (TPL) case, there is significant authority with a proposition that Medicare’s interest must be considered in a TPL case in the same manner that it must be considered in a Worker’s Compensation (WC) case. The question is really not whether the law applies, but rather will it be enforced. How much risk is the Personal Injury attorney willing to assume on behalf of his client and on his own behalf with respect to a potential subsequent malpractice case.

Medicare Secondary Payer Manual. The language of the statute of the Medicare Secondary Payer Act (MSPA) would appear to apply to all cases, including TPL and WC. The Medicare Secondary Payer Manual specifically refers to not only a Worker’s Compensation Medicare Set-Aside Arrangement, but also No-Fault Liability Medicare Set-Aside Arrangements and Liability Set-Aside Arrangements.[1]

CMS Memorandum. CMS has issued a Memorandum stating that in a TPL case an MSA is not required if a physician certifies that no future medical items or services will be required for that injury.[2]

Guidance from Dallas Region. The Dallas Region of CMS has stated, “The law requires that Medicare trust funds be protected from payment for future services whether it is Worker’s Compensation or a liability case. There is no distinction in the law.”[3]

U.S. Attorney General—Western District of New York. The U.S. Attorney for the Western District of New York has issued a protocol indicating that, under certain circumstances, his office will review Liability Medicare Set-Asides (LMSA).[4]

[1] Medicare Secondary Payer Manual (MSP) Chapter 1.

[2] CMS Memorandum, Subject: Medicare Secondary Payer—Liability Insurance (including Self-Insurance), Settlements, Judgments, Awards, or other payments for future medicals-information, from Acting Director, Financial Services Group to Consortium Administrator for Financial Management and Fee-for-Services Operations (Sept. 29, 2011).

[3] Sally Stalcup, MSP Regional Coordinator, CMS, Division of Financial Management and Fee-for-Service Operations Region VI Handout (May 25, 2011).

[4] Western District of New York, Medicare Secondary Payor Protocol, Assistant U.S. Attorney Robert G. Trusiak (May 6, 2011).

by Thomas D. Begley, Jr., Esquire, CELA

In any recovery involving a personal injury case, the interest of Medicare must be considered.^[1] The idea is that because Medicare is a secondary payer, a beneficiary should not be permitted to receive a recovery for future medical care, pocket the money, and then bill Medicare for that future medical care.

Are MSAs Appropriate in TPL Cases?

A Medicare Set-Aside Arrangement (MSA) is never required. In the context of Workers’ Compensation (WC) settlements it is a safe harbor. It should be a safe harbor in the context of Third Party Liability (TPL) settlements as well.

In June 2012, The Centers for Medicare and Medicaid Services (CMS) issued a Notice of Proposed Rulemaking.[2] The rulemaking would outline procedures for MSAs in TPL cases. The American Association for Justice (AAJ) has responded to CMS with respect to this Notice of Proposed Rulemaking.^[3] The Notice was submitted to the Office of Management and Budget (OMB) on August 1, 2013. The OMB did not approve the proposed rule and CMS withdrew it on October 8, 2014.^[4]

Reasons Supporting the Argument that the Medicare Secondary Payer Act Applies to TPL Cases with Respect to MSAs

There are a number of reasons to believe that MSAs are appropriate in personal injury cases. They are as follows:

• An informal survey of the 10 CMS Regional Offices by members of the Special Needs Alliance confirm that Region has taken the position that even in third party liability (TPL) cases, Medicare’s interests must be considered, and in the absence of further guidance, the Worker’s Compensation (WC) guidelines should be followed.

• The Medicare Secondary Payer Manual now includes language referring to “Liability Set-Aside Arrangement.”

• CMS has issued a memorandum that in TPL cases an MSA is not required “where the beneficiary’s treating physician certifies in writing that treatment for the alleged injury relating to the liability insurance (including self-insurance) ‘settlement’ has been completed as of the date of ‘settlement’ and where future medical items and/or services for that injury will not be required, Medicare considers its interests, with respect to future medicals, for that particular ‘settlement’ satisfied.”[5] The converse would appear to be that if the treating physician will not sign such an opinion letter, the MSA would be required.

• The U.S. Attorney for the Western District of New York has issued a protocol indicating that, under certain circumstances, his office will review MSAs in TPL cases.[6]

• A U.S. District Court[7] has found that a set-aside for future medical expenses in a liability case is appropriate.

Cases Where an MSA is Not Required

There are several situations in which an MSA is unnecessary:

• The facts demonstrate that the claimant is only being compensated for past medicals and not for future medicals. There is no evidence of an attempt to maximize other aspects of the settlement.

• The treating physician concludes in writing that, to a reasonable degree of medical certainty, the individual no longer requires any Medicare-covered treatments related to the claim.

• The client is not receiving Medicare and has no reasonable expectation of receiving Medicare within 30 months. The Medicare Secondary Payer Act does not apply to individuals not covered by Medicare.

Five Alternatives for Personal Injury Attorneys with Respect to MSAs

That leaves practitioners in the same place they were in prior to October 8, 2014. The personal injury attorney, therefore, has five alternatives to consider with respect to an MSA:

1. Do nothing to protect Medicare and assume the risk that the rules will be enforced in his case, his client will be denied Medicare coverage for future medicals and possibly bring a malpractice action against the attorney;

2. Do nothing but draft releases documenting that the plaintiff has been advised of Medicare’s possible interest and that he knowingly agrees to assume any risk;

3. Be prepared to show that Medicare’s interest has been protected by shifting the primary payer – such as a continuing health insurance policy – and assume the risk that the health insurance policy will remain in place and that the person primarily being covered by the policy will not lose his job, die, retire, or become disabled;

4. Prepare an allocation report, but do not submit to CMS for approval, and fund the MSA;

5. Prepare and submit the MSA to CMS for approval.

The author recommends the fourth alternative to avoid any risk to the client and to the personal injury attorney. If the client does not “consider Medicare’s interest,” Medicare may deny future coverage. If the client files a claim and is denied, he may well bring a malpractice action against the personal injury attorney.

Special Needs Trusts and MSAs

Generally, MSA funds are deposited in a custodial account with a professional trustee or given to the client to self-administer. For cases less than $100,000, giving the funds to the client to self-administer makes sense. CMS has issued a letter of instructions to be delivered to the client who would be administering his or her own custodial account. Even if a client misuses the money, the personal injury attorney should be off the hook with respect to a subsequent malpractice claim.

If the MSA funds are self-administered by the client or administered by a professional custodian and held in a custodian account, they will be considered countable assets that will disqualify the client from asset-tested public benefits such as SSI and Medicaid. The solution to that problem is to deposit the funds in a Special Needs Trust. MSAs are generally administered by custodians such as Medivest. However, money in a custodial account is considered a countable asset for someone receiving asset-tested public benefits. In those situations, a Special Needs Trust (“SNT”) is required and the trust is designed so that the MSA funds are placed in a separate sub-trust within the SNT. Generally, a professional trustee will hire a professional custodian to administer the MSA sub-account. By wrapping the MSA sub-account in the SNT, the assets in that sub-account are no longer countable to the trust beneficiary.

[1] 42 U.S.C. §1395y(b)(2).

[2] 42 C.F.R. Parts 405 and 411; 77 Fed. Reg. 35917-35921 (Jun. 15, 2012).

[3] American Association for Justice (AAJ) in a letter to Suzanne Kalwa of the Centers for Medicare and Medicaid Services (Aug. 14, 2012).

[4] RIN: 0938-AR43 EO 12866 Meetings.

[5] CMS Memorandum, Subject: Medicare Secondary Payer – Liability Insurance (including self-insurance) Settlements, Judgments, Awards, or Other Payments for Future Medical Information, from Acting Director Financial Services Group to Consortium Administrator of Financial Management and Fee for Services Operations (Sept. 29, 2011).

[6] Western District of New York, Medicare Secondary Payer Protocol, Assistant U.S. Attorney Robert G. Trusiak (May 6, 2011).

[7] Big R Towing, Inc. v. Benoit, 211 W.L. 43219 (W.D. La. Jan. 5, 2011).

by Thomas D. Begley, Jr., Esquire, CELA

In any recovery involving a personal injury case, the interest of Medicare must be considered.^[1] The idea is that because Medicare is a secondary payer, a beneficiary should not be permitted to receive a recovery for future medical care, pocket the money, and then bill Medicare for that future medical care.

Are MSAs Appropriate in TPL Cases?

A Medicare Set-Aside Arrangement (MSA) is never required. In the context of Workers’ Compensation (WC) settlements it is a safe harbor. It should be a safe harbor in the context of Third Party Liability (TPL) settlements as well.

In June 2012, The Centers for Medicare and Medicaid Services (CMS) issued a Notice of Proposed Rulemaking.[2] The rulemaking would outline procedures for MSAs in TPL cases. The Office of Management and Budget (OMB) did not approve the proposed rule and CMS withdrew it on October 8, 2014.^[3] That leaves practitioners in the same place they were in prior to October 8, 2014. The personal injury attorney, therefore, has five alternatives to consider with respect to an MSA:

1. Do nothing to protect Medicare and assume the risk that the rules will be enforced in his case, his client will be denied Medicare coverage for future medicals and possibly bring a malpractice action against the attorney;

2. Do nothing but draft releases documenting that the plaintiff has been advised of Medicare’s possible interest and that he knowingly agrees to assume any risk;

3. Be prepared to show that Medicare’s interest has been protected by shifting the primary payer – such as a continuing health insurance policy – and assume the risk that the health insurance policy will remain in place and that the person primarily being covered by the policy will not lose his job, die, retire, or become disabled;

4. Prepare an allocation report, but do not submit to CMS for approval, and fund the MSA;

5. Prepare and submit the MSA to CMS for approval.

The author recommends the fourth alternative to avoid any risk.

[1] 42 U.S.C. §1395y(b)(2).

[2] 42 C.F.R. Parts 405 and 411; 77 Fed. Reg. 35917-35921 (Jun. 15, 2012).

[3] RIN: 0938-AR43 EO 12866 Meetings.

by Thomas D. Begley, Jr., Esquire, CELA

Generally, Medicare Set-Aside Arrangement (MSA) funds are deposited in a custodial account with a professional trustee or given to the client to self-administer. For cases less than $100,000, giving the funds to the client to self-administer makes sense. CMS has issued a letter of instructions to be delivered to the client who would be administering his or her own custodial account. Even if a client misuses the money, the personal injury attorney should be off the hook with respect to a subsequent malpractice claim.

If the MSA funds are self-administered by the client or administered by a professional custodian and held in a custodian account, they will be considered countable assets that will disqualify the client from asset-tested public benefits such as SSI and Medicaid. The solution to that problem is to deposit the funds in a Special Needs Trust. MSAs are generally administered by custodians such as Medivest. However, money in a custodial account is considered a countable asset for someone receiving asset-tested public benefits. In those situations, a Special Needs Trust (“SNT”) is required and the trust is designed so that the MSA funds are placed in a separate sub-trust within the SNT. Generally, a professional trustee will hire a professional custodian to administer the MSA sub-account. By wrapping the MSA sub-account in the SNT, the assets in that sub-account are no longer countable to the trust beneficiary.

How Are Ratings Calculated?

Nursing homes are graded in three ways. First, trained surveyors perform inspections on site. These include annual inspections and those prompted by a complaint. Second, specific quality measures are assessed. Eleven quality measures are scored based on clinical data reported by the nursing home themselves. Lastly, the staffing of the home influences their grade. While the federal government requires enough staffing to adequately care for residents, there is no specific ratio. Therefore, the CMS staffing rating is the only existing guideline currently. Staffing is calculated by Registered Nurse (RN) hours per resident day and total staffing hours per resident day, including RNs, Licensed Practical Nurses (LPN), Licensed Vocational Nurses (LVN) and Certified Nurses Aids (CNA). By going to the Nursing Home Compare website, users can look at overall ratings or view how each home scores in these three categories separately. While the rating system was launched in 2008, two new factors are being considered in their quality measurements.

• Antipsychotics. Homes will be rated on their use of antipsychotics. Research has shown that homes often prescribe these medications for conditions that do not require them. Now, they will be scored by how much they use antipsychotics on long-term and short-term patients.
• Staffing. CMS has updated how much staffing influences a home’s overall score. Nursing homes must now earn four stars in their total staffing or RN rating to get at least an overall four-star rating.

CMS Warns of Initial Decline

Before the recent revisions, about 80 percent of homes received a four or five-star rating. CMS estimates now only about 49 percent will get these high ratings. About two-thirds will see a drop in their quality ratings and one-third will see decline in their overall score. However, CMS is confident the scores will increase as nursing homes work hard to make improvements in line with the quality of care reflected by the scoring process. In fact, benefits are already being seen. For example, CMS has been focusing on reducing the amount of antipsychotics for the last couple years. By the end of 2013, there was a 15 percent reduction compared to 2011. In coordination with the National Partnership to Improve Dementia Care, CMS has set a goal to reduce antipsychotic use by 30 percent by the end of 2016.

Selecting a Home

While Nursing Home Compare is extremely helpful, selecting a home for your loved one requires much more than viewing a rating system. Many factors much be considered, including proximity to family, amenities, quality of life offered, treatment required by the patient, costs and numerous other factors. An on site visit and interview with staff will help you get a feel for the atmosphere. While comfort and quality are your top priority, cost cannot be ignored either. Families must consider not only the out-of-pocket costs, but also a strategy to protect your loved one’s assets. An experienced Medicaid attorney can help protect your assets, as well as determine what coverage you qualify for. Talk to an attorney at The Elder Care Firm about the use of trusts, transferring assets, purchasing annuities or a strategy that increases income and resource allowances for family members. Contact us to get started.

The post Medicaid Updates Nursing Home Ratings, Helping to Make Long-Term Care Decisions Easier appeared first on Estate Planning Lawyers | Elder Law Attorneys | Brighton | Novi | Livonia Elder Law Attorneys.

Medicare only pays for care in a nursing facility if a patient is admitted to the facility within a month of having been admitted to a hospital for at least 3 consecutive days. In addition, Medicare requires physician certification of the fact that the necessary care can only be provided by an inpatient facility. The Centers for Medicare and Medicaid Services (CMS) must have approved the facility.

For Medicare to cover care in a skilled nursing facility, the patient must need the facility’s rehabilitation services five days a week, or its skilled nursing services seven days a week. If the care could be administered at home by a nurse on a less frequent basis, Medicare will not cover the care in a facility.

Even when care in a facility is covered, Medicare only pays for 100 days of care. For the first 20 days, full coverage is provided. From days 21 through 100, co-payment is required. After 100 days, the patient is required to pay privately until they have exhausted their resources and are eligible for Medicaid.

Medicare charges are monitored by Recovery Audit Contractors, who work for the CMS. These contractors receive a commission for detecting and recovering overpayments, so doctors and hospitals are very motivated to avoid charging Medicare for expenses that are not covered.

The elder law attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more. To learn more, visit http://www.hooklawcenter.com/ or call 757-399-7506.

This is the second part of a two-part article dealing with the impact of Windsor on taxation and public benefits.  This article will examine the impact of Windsor on public benefits planning.

In United States v. Windsor,[1] the United States Supreme Court declared §3 of the Defense of Marriage Act (DOMA) unconstitutional.  This section limited marriage to a union between one man and one woman.  Windsor did not apply to §2 of DOMA, which permits states to refuse to recognize the actions of another state on the issue of same-sex marriage.  Therefore, a couple married in New Jersey would have a valid marriage because the marriage was celebrated in a state that recognizes same-sex marriages.  However, if that same couple then moved to Pennsylvania, §2 of DOMA permits Pennsylvania to refuse to recognize the valid marriage celebrated in New Jersey.

• SSI.  The Social Security Administration (SSA) has taken the position that post-Windsor[2] for a same-sex married couple to be entitled to SSI benefits as a married couple, the applicant must have been married and domiciled in a state recognizing same-sex marriages.  Same-sex marriage is relevant in the SSI context in the application of SSI deeming rules and benefit amounts.[3]  In other words, if a member of a married couple applied for SSI, the income and resources of the other spouse would be deemed to the applicant’s spouse.  This could not have a positive effect, but could have a negative effect on the applicant’s eligibility.  Also, if there are two eligible spouses, the combined SSI benefit is only $1,082 per month for 2014[4] as opposed to $721[5] per month for a single individual or $1,442 for two unmarried individuals.  In this case, the marriage penalty is $360 per month.
• SSDI.  SSA has taken the position that to be eligible for SSDI, the applicant must have been married in a state recognizing same-sex marriages and domiciled in a state recognizing those marriages.[6]

• Lump Sum Death Benefits.  With respect to lump-sum death benefits, Social Security will recognize a claim assuming the same-sex couple was married in a state that recognizes same-sex marriages and that the deceased spouse was domiciled at the time of death in a state that recognizes same-sex marriages.[7]

• SSDI – Spousal Survivor Benefits.  To be eligible, the marriage must have been performed in a state recognizing same-sex marriages and the decedent must have been domiciled in a state recognizing same-sex marriages at the time of death.[8]

• Medicaid and CHIP.  The Centers for Medicare and Medicaid Services (CMS) has issued guidelines on how Windsor will affect Medicaid and the Children’s Health Insurance Program (CHIP).[9]  CMS has stated that there is two-prong test for many of these public benefits.  One is the state of celebration.  Was the marriage celebrated in a state that recognizes same-sex marriages?  Two is the state of domicile.  Does the same-sex couple reside in a state that recognizes same-sex marriages?

Medicaid is a joint federal/state program.  Funding comes partly from the federal government and partly from the state government.  Therefore, state law in the state of domicile must be considered.

Under the CMS guidance, CMS takes the position that to apply for Medicaid benefits the marriage must have been celebrated in a state that recognizes same-sex marriages and the couple must be domiciled in a state that recognizes same-sex marriages.  Suppose a same-sex couple is married in New Jersey and later applies for Medicaid in New Jersey.  Since New Jersey is the state of celebration and domicile, Medicaid should recognize the marriage.  This means that the assets of the community spouse would be deemed to the institutional spouse, and the community spouse would be entitled to keep the Community Spouse Resource Allowance, which is one-half of the couple’s combined countable assets with a maximum of $117,240 for 2014.[10]

The community spouse would also be entitled to the Minimum Monthly Maintenance Needs Allowance (MMMNA), which until June 30, 2014, is $1,938.75,[11] and which will increase to $1,966.25 for the period July 1, 2014 until June 30, 2015.[12]

• Medicare.  SSA has announced that Medicare Advantage Plans must provide coverage of post-hospital extended care services to Medicare enrollees through a home skilled care nursing facility, if the enrollee elects to receive coverage from such a facility and if the facility either has a contract with the MA organization or agrees to accept substantially similar payment under the same terms and conditions that apply to similar skilled nursing facilities that contract with the MA organization.[13]

• Veterans Benefits.  For most federal Veterans benefits, the same-sex marriage must be celebrated in a state that recognizes same-sex marriages, but there is no requirement that the applicant be domiciled in a state recognizing such benefits at the time of application.[14]

CHART

THE EFFECT OF WINDSOR ON TAXATION AND

PUBLIC BENEFIT PROGRAMS

R = Required; NR = Not Required

As a condition of Medicaid eligibility, a Medicaid applicant is required to assign to the state any rights to payment of medical care from any third party.[1]  If the individual fails to pursue the claim, the state has the option of pursuing it.  Federal law requires that each state Medicaid program have procedures for determining the legal liability of third parties to pay for medical assistance provided by the state’s Medicaid plan, and for recovery from third parties of the cost of medical assistance provided, whenever recovery is feasible.[2]  In New Jersey, the Attorney General is responsible to enforce any rights against third parties for recovery of liens.[3]  A Medicaid lien applies only to medical assistance related to the injury and the lien applies only to payments made from the date of the injury to the date of settlement.  Where there are multiple parties involved in an action, the Medicaid lien applies only to assets recovered by the personal injury victim, if no medical expenses were paid as a result of the injury to other parties such as parents or spouses.  Where the third party suffered no physical injury resulting in any payment by Medicaid, but who have only a derivative claim, no Medicaid lien attaches to their claim.

A Medicaid lien may be reduced by procurement costs.  Procurement costs are counsel fees, costs or other expenses incurred by the recipient or the recipient’s attorney.[4]  In 2006, the United States Supreme Court in the case of Arkansas Department of Health and Human Services v Ahlborn[5] held that the State Medicaid Agency was only entitled to recover from that portion of the settlement earmarked for medical expenses.  The court held that the agency could only recover a pro rata share of its claim, which is determined by the ratio that the settlement amount bears to the reasonable value of the total claim.  By taking advantage of an Ahlborn reduction, the plaintiff was guaranteed some compensation for pain and suffering, economic damages, and other losses sustained as a result of the injury.  If the settlement was less than the true value of the case because of limits on insurance, issues with liability or other mitigating factors, both the plaintiff and the State Medicaid Agency shared the loss proportionately.

The issue has always been how to determine the true value of the claim.  The three principal ways of making this determination are through an Expert Witness Report citing similar cases and explaining why the case in question resolved for less than true value, utilizing Jury Verdict, which is the method used by the Division of Medical Assistance and Health Services in New Jersey, or by a Court Order.  A Court Order may be obtained allocating the settlement on various categories of damages.  The State Medicaid Agency should be notified of any such hearing.

In cases where a special needs trust was involved for purposes of preserving the plaintiff’s future eligibility for Medicaid, an issue frequently arose as to whether the Medicaid lien had to be satisfied prior to funding the special needs trust, or whether it could be satisfied from the payback provision on the death of the plaintiff/trust beneficiary.  In Cricchio v. Pennisi, a New York Court of Appeals ruled that Medicaid is entitled to repayment of the lien prior to funding the special needs trust..[6] New Jersey has followed the same reasoning as Cricchio.[7]  The Health Care Financing Administration (HCFA), now CMS, takes the position that if a special needs trust is funded prior to satisfaction of the Medicaid lien, the individual will lose Medicaid eligibility.[8]

At the end of 2013, Congress passed the Bipartisan Budget Act of 2013 (BBA 2013).  Beginning on October 1, 2014, states will be required to seek reimbursement from portions of personal injuries recoveries beyond what is directly attributable to past medical expenses.  Under the amended statute,[9] the state is deemed to have acquired not only the right to payment by third parties for health care items or services, but also to “any payment by [a] third party” with respect to legal liability to make payments for assistance provided by the state.  Also under the amended statute,[10] applicants must assign to the state their rights for “any payment for a third party that has a legal liability to pay for care and services under the plan” as opposed to simply assigning their rights to payment for medical care by a third party.  The BBA also carves out an express exception to the Medicaid anti-lien provisions to allow for rights acquired by or assigned to the state under 42 U.S.C. §§1396a(a)(25)(H) and 1396k(a)(1)(A).  Therefore, under the amended statute, the states’ assigned rights extended to any payments from a third party with legal liability to pay for care or services available under the plan.  CMS has adopted the broad policy that states are required to seek reimbursement from portions of tort recoveries not attributable to medical expenses.[11]  These amendments supersede Ahlborn.

These amendments become effective on October 1, 2014.  It is not clear from the legislation whether this date will apply to applications for reduction made as of that date, to cases settled as of that date, or to injuries sustained as of that date.  If the amendments remain in effect, litigation is sure to follow.  AAJ and other advocacy groups are working to repeal this amendment.

This provision in the Bipartisan Budget Act amounts to a tax on catastrophically disabled individuals who may be left with little or no recovery after payment of the Medicaid lien. In fact, the policy may be counterproductive in that it will lessen plaintiffs’ incentive to pursue otherwise valid claims.  The ironic result may be that with fewer plaintiffs pursuing claims, the supposedly revenue-raising amendments actually states’ total reimbursements.[12]

The Centers for Medicare and Medicaid Services (CMS), the federal agency that oversees those programs, recently announced new rules to strengthen the Community Living Initiative — a program launched in 2009 to develop strategies to increase Medicaid recipients’ opportunities for care in home- and community-based settings (HCBS).

The new rules set definitions for HCBS and specify that Medicaid will support HCBS programs that offer an alternative to care in institutional settings and that take into account a patient’s quality of life. States will be granted a transitional period during which they can ensure their HCBS programs meet requirements. During this period, states will be provided with technical assistance.

The new rules give states more options for expanding HCBS and for targeting specific segments of the population. They also streamline regulatory and documentation procedures for more efficient operations.

The elderly, ill, disabled and low-income populations are all vulnerable to marginalization. Institutionalized care, while necessary and beneficial for some, can be a prime example of such marginalization when not medically necessary. Those who will become able to receive care in their homes and communities because of these changes stand to benefit immensely from the CMS’s new rules.

The attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more. To learn more, visit http://www.hooklawcenter.com/ or call 757-399-7506.

The Michigan Endoscopy Center in Novi, Michigan has a unique offer for free GI procedures.  This free service is made available by rules of the Centers for Medicare & Medicaid Services.  Michigan Endoscopy Center has CMS approval until the end of the year at its new surgery center in Novi to provide these tests free of charge.  These procedures cost around $3,000, so this is a real benefit to veterans that may not have income, insurance or healthcare.

Colonoscopy’s make a great holiday gift! …one size fits all, they can’t be returned and just might save a life!

To see if you qualify, please contact the Center’s administrator at the number below.

Brien Fausone, MA, MBA

Administrator
Michigan Endoscopy Center
(248) 865-6555 phone
bfausone@endoctr.com

Legal Help for Veterans, PLLC fights for veterans rights. We fight to make sure you get the benefits you deserve from the Department of Veterans Affairs. To learn more or contact a veterans lawyer, visit http://www.legalhelpforveterans.com/ or call 800.693.4800

Congressional Commission on Long-Term Care  claims that CMS is too burdened to drive long-term care reform.

By Chris Berry

While typical long-term care reforms depend on the Centers for Medicare & Medicaid Services to be implemented, an overwhelming demand on the agency has taken its toll, leaving the agency unable to manage all the necessary changes, a panel of experts reports.

All three panelists were members of the Congressional Commission on Long-Term Care, which recently made their recommendations on how to reform the United States’ long-term services and supports system. Panel host Bob Cusack, the managing editor of The Hill newspaper, identified that most of these recommendations would be handled by CMS. He questioned whether CMS could manage the proposed reforms without the benefit of an administered budget that was “dramatically” increased.

(Related: New Phone Scams Targeting Seniors)

“For this to be successfully engaged … I think you probably need to think about another agency,” said Henry Claypool, executive vice president of the American Association of People with Disabilities.

The Administration for Community Living, created to help enact the long-term care component of the ACA, is one potential candidate to oversee long-term care reform. Although this part of the law was eliminated in January, the ACL, or a new agency similarly created, could alleviate pressure from the CMS, Claypool stated.

(Related: Obamacare’s Impact On Michigan Seniors)

Currently CMS is occupied with bending the Medicare cost curve, hindering its ability to steer long-term care reform, he added.

Consensus on the matter was reached among the other panelists.

“Very often we focus on CMS as the only engine of renewal and effort,” said Carol Raphael, vice chairman of the board at AARP. She added that there are a number of other arenas that can drive change, and that technology can be a major player in changing the LTSS system.

(Related: Medicare Advantage Increases Popularity Despite Obamacare Cuts)

President of the public policy research organization, the Galen Institute, Grace Marie Turner agreed. She warned that placing too much focus on regulation will stifle the type of innovation that will result in more organic changes system-wide.

Read more: http://www.mcknights.com/cms-too-burdened-and-focused-on-cost-to-be-the-epicenter-of-long-term-care-reform-experts-say/article/321994/

Christopher J. Berry is a Michigan elder law attorney Dedicated to helping seniors, veterans and their families navigate the long-term care maze. To learn more visit http://www.theeldercarefirm.com/ or call 248.481.4000

Although few would plan for the years after retirement to be spent in a nursing home, unforeseen illness and declining mobility could render dreams of traveling the country by RV or perfecting agolf swing unlikely. According to a 2004 report compiled by the Centers for Disease Control(CDC), 27 percent of Americans over the age of 65—1.3 million—were residing in nursing homes.  What’s more, the Census Bureau predicts that the population of people 65 and over willmore than double to 86.7 million in 2050 from 36.3 million in 2004, a number that reveals the potential rise in health issues as a result of an aging population whose life span has become increasingly higher than in previous years.  But with many elderly people stubbornly resisting the transition to a nursing home—stereotypes of loneliness, isolation and stifled independence abounding—is there any alternative other than home health care for people requiring day to day care? Based on the teachings of Dr. Bill Thomas, a geriatrician whose Eden Alternative philosophy teaches that “aging should be a continued state of development and growth, rather than a period of decline,” the Sarah Neuman nursing home in Mamaroneck plans to build a freestanding set of buildings modeled after Thomas’ Green House project, which will address what Thomas says are the basic problems affecting nursing home residents: loneliness, boredom and helplessness.  In a poignant quote from a National Public Radio (NPR) interview in 2005, Thomas said, “I believe that in the nursing home every year, thousands and thousands of people die of a broken heart. They die not so much because their organs fail, but because their grip on life has failed.”  Please continue reading at:http://nanuet.patch.com/articles/nursing-home-of-the-future-mamaroneck-s-sarah-neuman-pioneering-resident-centered-care

Former CMS administrator scolds long-term care providers — but he has it all wrong!
By Steve Moran, Senior Housing Forum

McKnight’s Long-Term Care published an article titled “Former top Medicare official scalds long-term care leaders”  on September 26. According to this article, Tom Scully, the former chief of the Medicare & Medicaid Services Administration, brutally chastised the long-term care industry for exploiting a change in the Medicare reimbursement rules that allowed providers to extract an extra $5 billion from the system in less than a year.His proposition was that the long-term care providers should have known that it would not last and would damage their lobbying efforts for the foreseeable future. He has it wrong on so many counts. Last year, I pointed out:
The system, as designed by the government, is adversarial in nature, meaning that the government works to pay out as little possible and the providers work to get paid as much as possible while not breaking the rules, which is exactly what they did.The government is that stupid! If they had thought out the rule change it would have been easy to  figure out how the providers would react. This was an easily predictable outcome.You could even make a case that if the providers had not taken advantage of the rule change, they would have been violating their responsibility to their investors.The providers did nothing that was illegal or even against the rules. It is hard to even figure out how to apply morality to this particular situation. At the end of the day, even with the “take backs”, the long-term care providers who were the most aggressive in taking advantage of the system ended up financially better off than if they had not. At least some of those providers who”did the right thing” ended being penalized for not taking advantage of the system.The blame for this colossal waste of tax money, my money and your money, lies squarely at the feet of the CMS.

Simple Products That Can Make Mobility Easier
by Lynda Shrager, The Organized Caregiver

After 33 years of practicing in the field of occupational therapy, it still never ceases to amaze me how a simple piece of adaptive equipment can so highly impact how a person completes a task.Whether they have joint limitations, decreased strength, loss of the use of one extremity, poor balance, or difficulty mobilizing, a simple modification can often turn an impossible task into an achievable one. One of my principles of health organizing is to gather all of the equipment you need ahead of time before undertaking a task:The Organized Caregiver’s Top Ten Choices for Products That Will Make Life Easier and Safer:
1. Elastic shoe laces: Lace in shoes, pull to desired tension, tie a bow and then never have to tie your shoes again! It turns tie shoes into slip-ons.
2. Button hook/Zipper pull: The button hook is inserted through the button hole, hooks the buttonand easily pulls it back through. The zipper pull easily grabs hard to grasp zippers. This is a greattool for people with decreased fine coordination or arthritis.
3. Rocker knife: Simultaneously stabilizes and cuts food. The knife has a sharp, curved blade thateasily cuts when rocked back and forth over food. For one handed use, decreased coordination orweakness.
4. Spike board: A cutting board with several long nails protruding up to stab meats, vegetablesand fruits for cutting or peeling. Look for suction cup legs and a raised corner against which apiece of bread can be placed for buttering. This is a good product for people with weakness, onehanded use, a lack of coordination or low vision.
5. Bed rail: Available in many types and sizes, this small rail provides support to help people safely get in and out of bed. Many have a base that fits between the mattress and box spring with no assembly required!
6. Sock aide: An incredible gadget that helps you put on socks without bending over. An inexpensive tool that is helpful for those with limited mobility or recovering from hip replacement surgery.
7. Raised toilet seat with handles: If you have decreased mobility in the hips, knees or back your toilet can seem very low. This product raises it about four inches and has armrests for added safety and support.
8. Reacher: Helps you pick up things more than an arm’s length away for people with limited reach or strength. Various types have different “jaws” depending on what type of objects you need to grab.
9. Bathtub transfer bench: Two legs sit outside of the tub and two are in. The person sits down and slides in without needing to step over the wall of the tub.
10. Grab bars: I saved the best for last. Place them in the shower, on the way into the tub, by the toilet, or near the door jam on the way out of the house. Be sure they are installed properly and have a textured surface making them easier to grasp. This simple bar will increase safety and make transfers easier.
You may purchase most of these items in your neighborhood home medical supply store. Many drugstores or big box stores also carry them. For more information, pictures of the products and where to purchase, go online to “Home Health Care Equipment and Supplies” or Google the name of the item.

Lawsuit Filed Over Negligence In DVT Prevention and Treatment
Tampa, FL (Law Firm Newswire) October 10, 2012 –

A lawsuit has been filed against an Illinois nursing home over negligence in the prevention and treatment of deep vein thrombosis (DVT). Carol Harrison, 63, was admitted to Maple Ridge Care Centre for rehabilitation and ventilator care following complications from surgery. As with many patients in long-term care, Harrison was at risk for blood clots. According to the lawsuit, medical staff failed to detect the fact that Harrison had developed DVT. Her leg had to be amputated, which allegedly hastened her death. DVT is a potentially fatal condition that staff at hospitals and nursing homes must be alert to, as anyone with limited mobility may be at risk due to compromised blood circulation. DVT happens when a blood clot is created in the veins of the legs or pelvis. If the clot breaks free and travels through the bloodstream, it becomes an embolism. Common symptoms of DVT include discoloration and swelling of the limb, usually the leg. Patients at risk may be prescribed blood thinners like Warfarin, but pneumatic compression therapy is another alternative. “Some doctors prescribe blood thinners like Warfarin to reduce the chance of blood clots, but these drugs are expensive, and have potentially dangerous side effects, which can be as serious as the clots themselves,” said Greg Grambor, owner of VascularPRN, a distributor of DVT prevention devices. “Pneumatic compression therapy is a far less expensive alternative, which is every bit as effective as the drugs, with absolutely no dangerous side effects.”Maple Ridge Care Centre is a nursing home in Lincoln, Illinois specializing in wound care,pulmonary diseases and physical therapy. The facility provides respiratory care through a partnership with the Springfield Clinic and Southern Illinois University Pulmonology. The nursing home lawsuit was filed in Macon County Circuit Court by Harrison’s husband. To learn more about a Sequential Compression Device, SCD boots, visit www.vascularprn.com or call 800-886-4331.

There has been significant discussion regarding hospital readmissions and the impact tocompensation. CMS has just begun a study looking at readmissions from nursing homes.
by Candyce Henry

A 79 year old woman had advanced heart failure, chronic lung disease and diabetes. She recently had signed a D.N.R., “do not resuscitate” order and there was nothing more that could be done to care for her at the hospital. The cardiologist called her doctor and they agreed that they would respect her wishes to be kept out of the hospital. Within a few hours after being placed in long term care, the staff noticed her very low oxygen levels and contacted another doctor who was not familiar with the woman’s medical history who gave the order to send her back to the hospital.The situation highlights problems with long-term care that frequently frustrate caregivers and that are receiving fresh attention from medical providers and Medicare. The nursing home staff had no knowledge of the woman’s D.N.R. and the patient was unable to provide information. This might not have happened if the woman’s D.N.R. order had traveled with her when she was discharged from the hospital. It is a common problem that results in the default option being to send the individual back to the hospital. When the patient goes to the hospital, she will be seen by a physician who doesn’t know her, usually for only a few minutes. Because the medical history is not readily available for nursing home patients, the doctor will order a number of tests which will likely show abnormalities because of the patient’s age and medical conditions. Then ext step is to readmit the woman to the hospital for more evaluation and observation. The patient will become afraid and disoriented because of the unknown situation, little sleep, and noise. She then will receive aggressive medications and be confined to her bed.
Few caregivers realize this is a likely chain of events. Rarely do nursing home doctors or nursessit down and explain the risks of hospitalizing a frail older person who is profoundly physicallyand mentally compromised. This is the set of problems that a new pilot program of the Centersfor Medicare and Medicaid Services (CMS) hopes to address in Alabama, Indiana, Missouri,Nebraska, Nevada, New York and Pennsylvania later this year. Seven organizations arepartnering with 145 Nursing Facilities to reduce avoidable hospitalizations. CMS will fundorganizations that provide enhanced on site services to support nursing facility residents. Nearlytwo-thirds of nursing facility residents are enrolled in Medicaid, and most are also enrolled inMedicare. These Medicare-Medicaid enrollees are among the most fragile and chronically illindividuals served by the programs. Research found that approximately 45 percent ofhospitalizations among Medicare-Medicaid enrollees receiving skilled nursing facility servicescould have been avoided. Total costs for these potentially avoidable hospitalizations forMedicare-Medicaid enrollees for 2011 were estimated to be between $7 and 8 billion. Allselected organizations will have on-site staff to partner with the existing nursing facility staff toprovide preventive services as well as improve assessments and management of medicalconditions. Participants will also work toward more seamless beneficiary transitions of care, andleverage use of emerging technologies, among many other activities. Each model will be subjectto a rigorous external evaluation.  The Initiative will be run collaboratively by the CMSMedicare-Medicaid Coordination Office and the Center for Medicare and Medicaid Innovation,both created by the Affordable Care Act to improve health care quality and reduce costs in theMedicare and Medicaid programs. http://innovations.cms.gov/initiatives/rahnfr/.