Restrict “Choose Life” License Plates to Considerate Drivers

The Michigan Senate and House have both passed bills to create “Choose Life” automobile license plates. This would involve a $35.00 surcharge that would go to a subsidiary of Right to Life of Michigan. I would not pay an extra dime for a special license plate, whether a vanity plate, a college identifier, or just a prettier image. Furthermore, the state should not endorse a religious or political position without allowing equal consideration for the opposite viewpoint. Aside from all that, if the state is going to issue “Choose Life” license plates, it should also require purchasers to sign a vow of consistent humanitarian values.

A few years ago, I saw a skateboarder going south in the right northbound lane of Military Street in Dearborn. He was being approached by a motorist going north, in the same lane. There were no other cars close to the motorist and he could have moved over to avoid hitting the skateboarder. He did not. He did not slow down; his brake lights did not flash. He bore down on the skateboarder, who swerved to the curb to save his life.

The skateboarder was in the wrong. He should not have been in a traffic lane, but such a minor infraction does not authorize a motorist to impose the death penalty.

I am relating this story because the car in question displayed a Right to Life bumper sticker. It also had a plate number that I noted. Since I had access to motor vehicle records at the time, I wrote the motorist a letter condemning his behavior. To be fair, I must mention that I received a reply several years later. He stated that he appreciated my bringing the matter to his attention and he regretted acting in a way that he characterized as “unchristian.”

Some people who would buy a “Choose Life” license plate have a consistent humanitarian ethic and would identify equally with a “Choose Love” license plate (if any organization with a philanthropic ax to grind could convince the state to issue one). They would support food, medical and housing assistance programs for those who need assistance. They would support foreign aid that is not military hardware for despots. They would support rehabilitation instead of incarceration for nonviolent offenses. They would support public education, including free public education from pre-school through at least two years of post-secondary education. Unfortunately, I think they are the minority.

Too many who display Right to Life bumper stickers are only concerned with preventing abortions. They are not concerned with women’s and children’s health except during gestation – and there the concern is exclusively directed at the welfare of the fœtus. They support capital punishment, stand-your-ground, and giving the Pentagon a blank check. They oppose social programs to help the less fortunate, particularly the Affordable Care Act, and contraception in general.

If “Choose Life” plates become available and you are considering making the purchase, look into your philosophy and beliefs. Are you a truly compassionate person with a consistent humanitarian ethic or a Right-to-Lifer who is only concerned with the welfare of the unborn?

What statement are you making if you put “Choose Life” on your car? Does it include a commitment to becoming a more considerate driver? If you are advertising a commitment to value life, take that gun out of your glove box and, if necessary, sign up for an anger-management class so you won’t be susceptible to road rage. Selling “Choose Life” license plates might not be such a bad thing if when you choose to purchase and display one, you also choose love and consideration.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

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Nursing-Home Residents Have Rights – Protect Them!

Ina Jaffe, in “As Nursing Homes Evict Patients, States Question Motives,” NPR, May 26, 2017, uncovers a dirty little secret of the long-term care industry. Many managers in that business are willing to abuse residents and break laws to maximize profits.

Maryland is suing Neiswanger Management Services, or NMS Healthcare, for flagrant and massive Medicare and Medicaid fraud. The suit alleges that the nursing home company charged the state for services it didn’t deliver, specifically for discharge planning. Nursing homes are legally required to ensure that a discharged resident is transferred to a safe placement where he or she will receive necessary care. But the Maryland Attorney General says that NMS absorbed patients’ lucrative Medicare rehabilitation days then sent residents with complex medical needs to homeless shelters or to shabby rooming houses that they knew would abuse the residents and fleece them for their Social Security. The room-and-board homes where the patients were dumped additionally charged Medicaid exorbitant per diem rates. Many skilled nursing facilities try to maximize profits by squeezing patients out when their Medicare benefits are exhausted, but NMS managers and their accomplices lowered the bar to the level of organized crime.

Medicare pays skilled-care facilities about three times as much per day for rehabilitation as Medicaid does for nursing care. A well-run nursing home can make money on Medicaid long-term care residents, but not nearly as much as they rake in for Medicare patients.

We have seen the result in the banking industry when management shreds the rule book and requires staff to pursue profit without regard to any ethical, or even legal, standard. Wells Fargo put such extreme pressure on staff to open new accounts that representatives steamrolled customers into opening unnecessary accounts and resorted to fraud when the customers resisted. They would hoodwink customers into executing blank signature cards, then use the cards to open unwanted accounts. The sole objective was to open as many accounts as possible. Many Wells Fargo customers had their credit ruined and their financial security compromised by having multiple bank and credit-card accounts opened without their knowledge or consent.

When that rapacious management style is adopted by a nursing-home operator, the results can be even more appalling. NMS, a five-facility rehabilitation and long-term care chain in Maryland, is being sued by the state’s attorney-general for flagrant disregard of Medicare and Medicaid regulations and resident safety in its involuntary discharge policies. When the rehabilitation bed occupancy was at or near capacity, the discharge coordinators would resort to kidnapping to get the patients out on the 101st day, the point at which skilled-care benefits are exhausted. They would traffick the unfortunate victim out of town to the sleazy owner of a shabby tenement lacking in care staff and medication. Worse yet, many patients were dumped at homeless shelters, hospital emergency rooms, relative’s addresses, or even on the street. The AG’s complaint is a Dickensian catalogue of horrors.

It is difficult to find a principle or proposition that most people agree on. Vaccination is even a source of controversy. The one thing that nearly everyone over 65 will vehemently oppose is being placed in a nursing home. Baby Boomers and older folks are 99 & 44/100% likely to prefer vegetating at home in their own filth over going to a <shudder> nursing home. Despite that, according to the federal government, the most common complaint against nursing home operators is not bad food, lack of staff, poor care or abuse by staff or other residents. It is eviction – involuntary discharge.

As much as they hate going to a nursing home, most residents – particularly those with dementia – become accustomed to the routine and begin to trust the staff after a month or two. Call it Stockholm Syndrome, but the prospect of being moved can be more stressful than the prospect of remaining in place. A change in location and caregivers can cause significant deterioration for a resident with dementia. Even those who are not mentally compromised suffer ill effects when moved without proper planning and social services. That is why an abrupt discharge on day 101, with no warning, is oppressive without regard to the placement. NMS did not just ignore the proper procedures for discharge, they carted the patients off to unfamiliar and unsafe surroundings and delivered them to scoundrels.

The legal restrictions and requirements of involuntary discharge are described in “Nursing Home Evictions.” A nursing-home resident has rights that can be enforced, with the assistance of an elder law attorney. Many rehabilitation, or skilled-care facilities that also have long-term care beds prefer to keep their beds filled with Medicare rehabilitation patients, not Medicaid long-term care residents. They will tell the patients’ families that they must move the patient at the end of rehabilitation because “they do not have an available Medicaid bed.” That is often a bluff to get the patient out so they can offer the bed to a more profitable Medicare rehabilitation patient. When the family has an attorney running interference on behalf of the patient the facility nearly always “finds” an available Medicaid bed at the last minute.

It is a pity that so many of NMS’s victims had no one to protect their rights. It is no less than criminal that the authorities ignored NMS’s abuse of vulnerable and elderly adults for years.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Vital Information about Medicaid and Long-Term Care

Please read this crucial explanation of the importance of Medicaid to long-term care residents and their families from the Long Term Community Coalition:  ltccc-medicaid-middle-class

Repealing the Affordable Care Act

Without spin or editorializing on the issue, here are some facts from The Center for Medicare Advocacy, medicareadvocacy.org, about the program Congress plans to repeal:

  • The uninsured percentage of Americans under 65 is the currently the lowest in decades. Beginning in 2014, the rate dropped from 16.6% to 10.5%.
  • As of March 31, 2016, 11.1 million people have coverage through the ACA Marketplace.
  • As of 2015, 11 million people in 31 states and the District of Columbia had coverage through Medicaid expansion under ACA, out of a total of 81 million on Medicaid.
  • There are 19 states that did not expand Medicaid: Alabama, Florida, Georgia, Kansas, Idaho, Maine, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Tennessee, Utah, Virginia, Wisconsin and Wyoming.
  • However, the ACA resulted in 16,748,000 people becoming eligible for Medicaid as of September 2016.

Congress says it will replace the ACA with something better. Dare we hope?

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Quest for Quality Care

brooklyn-convalescent-home-therapy-roomWhen it becomes necessary to look for nursing home placement for a loved one, the Nursing Home Compare tool on the medicare.gov website is an important starting point for screening facilities. However, it is only a starting point and it has serious shortcomings. It is necessary to do further investigating and review prospective placements.

Effective February 20, 2015, the Centers for Medicare & Medicaid Services (CMS) made some changes to Nursing Home Compare. The Quality Measures (QMs) were recalibrated, antipsychotic drug use was factored into the QM star rating, and staffing criteria were changed. These changes made the tool better, but far from excellent.

Three measures are rated: (1) health survey measure, based on unannounced annual surveys and complaint surveys conducted by state survey agencies; (2) staffing, based on self-reported nurse staffing, and (3) QMs, based on resident assessments. The weakness in the rating system is reflected in the high scores prior to the latest round of improvements. Approximately 80% of facilities received four or five stars on their QMs because high scores on the self-reported staffing measure and QMs will inflate a facility’s overall rating. According to The New York Times there was considerable gaming of the rating system. Katie Thomas, “Ratings Allow Nursing Homes To Game System; Medicare’s Five Stars; Data Taken at Face Value Often Fails to Reflect Real Conditions,” The New York Times, page 1 (Aug. 25, 2014),

The new changes include recalibration of the QMs to identify the number of points to achieve different star ratings. CMS claims that the change will raise the standard for skilled-care or long-term care facilities and differentiate the facilities to make the system more accurate. In 2009 only one in ten facilities received five stars and one- through four-star ratings were roughly equal. By 2013, one-star ratings had decreased by approximately 85% and five star ratings had increased from 10% to 35%. This is like a school that consistently awards A grades to 35% of the students. No matter how you slice it, no more than half of any student body can be above average and no more than half of LTCFs should be graded at three stars or better. After recalibration, half of all facilities will still be receiving four or five stars on QMs, which indicates a rigged system.

Four-star staffing ratings are awarded to facilities that score four stars on both the registered nurse component and the staffing category. A facility cannot receive a four-star staffing rating if either of the individual measures is three stars. Staffing had been self-graded by the facilities, which made it an unreliable measure of quality, but CMS has announced that it would require facilities to submit direct-care staffing information electronically.

All this suggests that medicare.gov ratings may not be relied on exclusively in choosing a nursing home. The ratings are very approximate and are based on sporadic inspections by an under-staffed federal agency.

It is necessary for the family to investigate beyond looking at the ratings. This involves visiting facilities, talking to residents’ families and employees, checking reviews on the Internet and consulting a geriatric care manager if the family can afford it.

It is not sufficient to rely on the hospital social work staff. Hospital discharge planners are generally overworked and may be under great pressure to empty hospital beds for new admissions. On Friday afternoons, discharge planners are expected to clear as many beds as possible for weekend admissions. At such times, discharge “planning” often consists of finding the first skilled nursing facility that will take the patient.

Presumably, the Joint Commission http://www.jointcommission.org provides a standard for discharge planning, but there is almost no way for someone who is not in hospital administration to review the standard and demand that the service be properly delivered. This places the responsibility for finding a good rehabilitation facility or nursing home squarely on the shoulders of the patient’s family and friends.

While visiting skilled care and nursing facilities, try to observe resident-staff interactions, as well as the cleanliness of the facility. Take time to talk to residents and see whether those who appear distressed receive prompt care.

The 1987 Nursing Home Reform Law includes many guaranteed rights for nursing home residents:

A) The right to be fully informed of available services and the charges for them, facility rules and regulations, including a written copy of resident rights, contact information for the state ombudsman and state survey agency, state survey reports and the nursing home’s plan of correction, advance notice of a change in rooms or roommates, assistance if a sensory impairment exists, and the right to receive information in a language they understand.

B) The right to present grievances without fear of reprisal and with prompt resolution by the facility, to complain to the ombudsman program, to file a complaint with the state survey and certification agency, and to participate in the resident’s own care.

C) The right to receive adequate and appropriate care, to be informed of changes in medical condition, to participate in assessment, care-planning, treatment, and discharge, to refuse medication, chemical and physical restraints, and treatment.

D) The right to private and unrestricted communication with anyone regarding medical, personal, or financial affairs, and to refuse visits.

E) The right to remain in the nursing facility unless a transfer or discharge is for good cause and is preceded by adequate notice and due process.

F) The right to be treated with consideration, respect, and dignity, free of mental and physical abuse, corporal punishment, involuntary seclusion, and physical and chemical restraints, to self-determination and security of possessions, and to visits by the resident’s personal physician, representatives from the state survey agency and ombudsman programs, and by relatives, friends, and others of the residents’ choosing.

hospitalWhen visiting facilities, enquire of the admissions and administration representatives, other visitors, and staff about the facilities’ attention to resident rights. Most facilities allow free access to lobbies and common areas in the facility. It should be possible to talk to a variety of staff, contractors providing services, and other visitors. If the facility restricts access, that may be a sign that the care they provide is substandard.

Almost no one wants to go to a nursing home, but there is a high probability that the patient in skilled care will go to an LTCF at the end of rehabilitation, not home. One of the most important criteria in choosing a rehabilitation or skilled-care facility (SNF) is whether all beds are certified for both Medicare and Medicaid. Many SNFs use up the patient’s highly-profitable Medicare days, then tell the family to search elsewhere for a Medicaid bed. This makes it very difficult to find a preferred placement. Facilities are eager to accept patients who are eligible for the 20 to 100 days of skilled care that Medicare covers, but will turn away persons who rely on Medicaid.

Finding good care is a complex process. Engaging a fee-paid geriatric care manager is worth many times the cost. They can be located through the National Association of Geriatric Care Managers.  An experienced elder law attorney can also be very helpful.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney

Vicious House Bill

A particularly curmudgeonly Medicaid “reform” has been introduced in Congress. Medicaid receives heaps and mounds of criticism, particularly related to nursing-home coverage. The coverage is expensive, both on an individual basis and as a program. However, individuals in nursing homes need that care and Medicaid is the last resort if they lack the ability to pay for it. The new bill is an unwarranted and unfair swipe at the “truly needy” that conservatives claim they want to protect.

“Medicaid planning,” advising potential or current nursing home residents and their families about legal financial plans to qualify for Medicaid while preserving income and assets, is particularly a target of derision of the long-term care insurance industry, conservative commentators and legislators, and welfare administrators. For example, in a Fordham Law Review article Milan Markovic strains to demonstrate that Medicaid planning is unethical. Milan Markovic, “Lawyers and the `Secret Welfare State,’” 84 Fordham L. Rev. 1845 (2016).

Timothy Takacs and David McGuffey, however, argue that Medicaid planning is a fair and reasonable response when dealing with a prohibitively expensive segment of the health care industry that is bound only by the rules of supply and demand and loosely-enforced regulations. Timothy L. Takacs & David L. McGuffey, “Medicaid Planning: Can It Be Justified?: Legal and Ethical Implications of Medicaid Planning,” 29 Wm. Mitchell L. Rev. 111, 131 (2002).

In my paper, the public-policy arguments that Medicaid should be reserved for the “truly needy” and that it is unethical to exploit loopholes in Medicaid law are addressed. John B. Payne, Ethical and Public Policy Considerations Related to Medicaid Planning, Pennsylvania Bar Association Quarterly, p. 139, October 2013, I urge that the citizen is as entitled to receive the benefit of favorable statutes in public benefits law as in tax law. I also argue that judges must apply the law as written, not according to their perception of public policy.

Congress has made many changes to Medicaid long-term care benefit eligibility over the last three decades. In 1988, the asset rules were changed to protect the financial security of non-institutionalized spouses of nursing home residents. The utility of asset-protection trusts was severely curtailed in 1993 and 2006. Furthermore, the divestment penalty rules were greatly toughened in the Deficit-Reduction Act of 2005, which was enacted in 2006. Congress knows how to find and revise Medicaid law. If opportunities for planning remain, the citizen should be able to rely on the law as written.brett guthrie

A House bill has been introduced that is presumably intended to curtail Medicaid planning. However, it is as related to Medicaid planning as a pitch pipe is to a pitchfork. The only effect of this bill would be to hurt citizens who need and qualify for Medicaid. The bill, HR-5626, introduced by Rep. Markwayne Mullin (R-OK) and Vice-Chair of the Energy and Commerce Subcommittee on Health, Brett Guthrie (R-KY), would eliminate the three-month retroactive eligibility period preceding the month of application for Medicaid.

Presumably, Mullin and markwayne mullinGuthrie believe that the three-month retroactive eligibility period represents a Medicaid-planning opportunity. While some states allow applicants to create asset eligibility retroactively by purchasing a funeral contract or paying medical bills, most others close the book on prior months. In those states, the applicant can only be approved for Medicaid benefits in the retroactive benefit period if he or she was below the income and asset limitations in each month for which Medicaid is requested. The applicant cannot go back and cure an asset problem. Therefore, the retroactive benefit period is only useful for applicants who were already eligible for the months in question.

The three-month retroactive eligibility period is far from a planning opportunity. It is a partial failsafe to go back and pick up lost eligibility due to honest mistakes or omissions when applications are submitted. It is also a way to recover from bureaucratic delays and Medicaid worker incompetence or obstructionism.

The 45-day standard of promptness is a joke in many Medicaid offices. Even within a state the typical processing time for a Medicaid application can vary from two weeks to 20 or more weeks. In some Michigan and Pennsylvania counties Medicaid applications lie dormant for upwards of two months before a worker takes a first look at a case. Colleagues in other states make similar complaints. Retroactive eligibility is a vital facet of the Medicaid program because it is a way for applicants to recover from ill treatment by the local offices.

Many provisions in Medicaid policy manuals intended to require fair treatment for applicants are ignored in practice. Further, the deck is often stacked heavily in favor of the Medicaid agency if the applicant requests a “fair hearing.” It is not unusual for a perfectly eligible Medicaid applicant to re-file two or more times before the case is approved. The applicant may lose far more than three months of eligibility due to worker error.

One particular applicant filed for Medicaid in September, but the worker did not process the case until April. The worker improperly denied the case because she did not deduct the current month’s income from the asset total. The family requested a hearing, which was scheduled for August. Shortly before the hearing, the family hired me. At the hearing, I demonstrated the worker’s mistake and Medicaid was approved based on the original application date. It was fortunate that the worker had made a mistake and doubly fortunate that the administrative law judge was fair. Otherwise, there could have been a year of nursing care that Medicaid would not cover.

Another case took three applications, two administrative hearings and three trips to court over ten months before the State admitted its mistake and approved coverage back to the first application date. Each of these applications should have been open-and-shut approvals.

The three-month retroactive Medicaid eligibility period provides crucial protection against mistakes and worker intransigence. It would be shameful for Congress to pass the bill introduced by Reps. Mullin and Guthrie. It would not address medicaid planning. It would only hurt those most in need. Let your member of Congress know that punishing the innocent serves no good purpose.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney

Surviving Spouse as Medicaid Victim

Estate recovery has been mentioned in this blog several times, most recently “Heavy-Handed Estate-Recovery.”  The following excerpt from Payne, Michigan Probate discusses the special case of the spouse of a nursing home resident who dies while on Medicaid, leaving an estate that must be probated:

The estates of deceased Medicaid recipients who are survived by their spouses present a special problem. Federal Medicaid law states that estate recovery “may be made only after the death of the individual’s surviving spouse, if any, and only at a time when he has no surviving child who is under age 21, or . . . is blind or permanently and totally disabled.” 42 USCA § 1396p(b)(2). Michigan Medicaid policy similarly states that recovery “will be made only after the death of the individual’s surviving spouse, and only when the individual has no surviving child who is either under age 21, blind, or disabled.” BAM 120, p 8 (January 1, 2016).

One would expect this limitation to poleax estate recovery where there is a surviving spouse. It is difficult to see how an estate-recovery claim would survive closure of the probate estate of the deceased Medicaid recipient after the residue is distributed, but that circumstance is not deterring the assistant attorneys-general representing DHHS Medical Services Administration from filing civil complaints for estate recovery.

While the State may impose a lien on, for example, the marital home before the surviving spouse’s death, the lien must provide for release on the surviving spouse’s demand for a sale or mortgage. The lien must provide clear and unequivocal notice that it is limited to the government’s interest in the property and must include mandatory release provisions. Dept. of Human Resources v. Estate of Ullmer, 120 Nev. 108, 87 P.3d 1045 (2004). These limitations would severely hamper the enforceability and utility of such a lien on real estate. Pursuing recovery from a financial account would be far more difficult.

As of this writing, the estate-recovery program is such a recent development that it was not possible to locate any case where this type of claim has been resolved in the probate court, let alone tested in the court of appeals. If the state develops a viable mechanism for enforcing estate recovery claims against the estates of surviving spouses, the potential reach is quite broad.

In addition to Nevada, courts in Minnesota and Ohio have ruled that federal Medicaid law authorizes recovery from the surviving spouse’s estate of assets in which the deceased Medicaid recipient had a legal interest at the time of death. In re Estate of Barg, 752 N.W.2d 52 (Minn., 2008). This includes the value of assets that were marital or jointly owned property at any time during the marriage. In re Estate of Jobe 590 N.W.2d 162, 164 (Minn. App.,1999). See also Ohio Dept. of Job & Family Serv. v. Tultz 152 Ohio App.3d 405 N.E.2d 1262 (Ohio App. 9 Dist., 2003). However, the Illinois Supreme Court reached the opposite conclusion, holding that estate recovery is prohibited by federal law when there is a surviving spouse and the state may not file a claim for estate recovery from the estate of the deceased surviving spouse. Hines v. Department of Public Aid, 221 Ill.2d 222, 850 N.E.2d 148 (2006). Accord, In re: Estate of Bruce, 260 S.W.3d 398 (Mo. App. 2008).

The evolution of Michigan’s estate recovery program will be a challenging adventure for the personal representatives of deceased Medicaid recipients and their attorneys, as well as AAGs representing MSA. Where the decedent is survived by a spouse, the issues are likely to be particularly thorny.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2016 John B. Payne, Attorney and Thomson Reuters