Monthly Archives: September 2016

Audits of Some Medicare Advantage Plans Reveal Pervasive Overcharging

September 23, 2016

More than three dozen just-released audits reveal how some private Medicare plans overcharged the government for the majority of elderly patients they treated, often by overstating the severity of certain medical conditions, such as diabetes and depression. The Center for Public Integrity recently obtained, through a Freedom of Information Act lawsuit, the federal audits of 37 Medicare Advantage programs. These audits have never before been made public, and though they reveal overpayments from 2007 — money that has since been paid back — many plans are still appealing the findings. Medicare Advantage is a privately run alternative to standard Medicare; it has been growing in popularity and now enrolls more than 17 million seniors. In 2014, Medicare paid the health plans more than $160 billion. There is growing controversy over the accuracy of billings, which are based on a formula called a risk score; it is designed to pay Medicare Advantage plans higher rates for sicker patients and less for people in good health. In a series of articles published in 2014, the Center for Public Integrity reported that overspending tied to inflated risk scores has cost taxpayers tens of billions of dollars in recent years.

In May, a Government Accountability Office report called for “fundamental improvements” to curb excess charges linked to faulty risk scores. In addition, at least half a dozen health-industry insiders have filed whistleblower lawsuits that accuse Medicare Advantage insurers of manipulating risk scores to boost profits. The audits from the Centers for Medicare and Medicaid Services show that all but two of the 37 health plans audited for 2007 were overpaid — typically several hundred thousand dollars too much — for the sample of 201 patients examined at each plan

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Source/more: NPR

U.S. Labor Department Makes It Easier for States to Launch Retirement Plans

September 23, 2016

Millions of workers struggle to save for retirement in part because it isn’t easy enough to open an account or to have the money automatically deducted from their paychecks. But they could soon find themselves with more options. Last week, the Labor Department unveiled a rule that should make it easier for states to launch their own retirement plans for private-sector workers who don’t already have access to savings accounts through their jobs. The rules, which were requested last year by President Obama, provide a clearer road map for states who want to provide such plans but needed more federal guidance. The department also announced a proposed rule that would open the door for large cities to create their own plans. With the new guidance, states that create their own plans will be able to automatically enroll workers into individual retirement accounts (IRAs). Workers will also be able to have their contributions automatically deducted from their paychecks, an option that is not usually available for people saving for retirement outside of a workplace plan. Employees typically gain access to these easy saving strategies when they have retirement plans at work, such as a 401(k) plan.  Source/more: Washington Post

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Judge Keeps in Place California Law Allowing Aid in Dying

September 23, 2016

A California judge last week refused to suspend a new state law allowing physician-assisted suicide for terminally ill patients, citing the need to protect them from pain, but he allowed a legal challenge to proceed. The mixed ruling portends a continued debate over the highly contested law in the first months of its implementation.  Source/more: Reuters

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U.S. Dept. of Justice Files Statement of Interest in Ohio Olmstead Case

September 23, 2016

On August 22, 2016, the United States filed a Statement of Interest in the case of Ball v. Kasich. In Ball, individuals on a wait list for home-and community-based services allege that Ohio’s ongoing denial of services has placed them at serious risk of institutionalization. The Statement of Interest clarifies that non-institutionalized individuals with disabilities who are not currently receiving state-funded home-and community-based services may bring a claim that a public entity has placed them at serious risk of institutionalization or segregation in violation of Title II’s “integration mandate.” The Statement of Interest also makes clear that a serious risk of institutionalization need not be imminent to state a valid Olmstead claim.  Source/more: U.S. Dept. of Justice

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Testimonial 9

September 23, 2016

“Phyllis and Jeannette are outstanding professionals. They were as always (we go back to ‘96) a pleasure and a blessing to work with. I’m glad to know them both.”

Testimonial 8

September 23, 2016

“I have greatly appreciated Phyllis Erlich’s legal counsel since 2006 for my mother and legal needs. You have always been friendly, caring and professional. I never hesitated to recommend your law firm to my friends.”

Inequality Has Gotten So Bad That We’re Offshoring Our Grandparents

September 22, 2016

Americans can’t afford to retire in the United States, so many are moving south of the border, trading one form of inequity for another.
By Katherine Stewart

In the early evening, as the sun starts to sink over the coffee farms and flower plantations, Robert Lawrence likes to stroll along the river that bisects the town of Boquete. A tall, 67-year-old Texan with silver hair and a friendly smile, he has made his home in this mountainous region of Panama for the past four years. As he meanders along the cracked walkway, he notes the flashy new condos sprouting up on the hillsides, built by foreign investors to meet the influx of American retirees. Continue reading

Seniors balk and Social Security backs off text messaging requirement

September 22, 2016

It’s good to keep up with the times, but the Social Security Administration (SSA) found itself too far in front of many people it serves.

Seeking to enhance online protections, the agency required “my Social Security” account holders to use a password sent to them via text message.

That was a problem for some older folks who don’t text message and don’t plan to.

“Who’s the youngster who dreamed up the idea of text messaging for senior citizens,” Franklin, 73, and Janice Moses, 70, of Arlington, asked in an email to the Federal Insider.

SSA officials got the message, not sent by text, and reversed course. Text messaging is no longer required.

“Our aggressive implementation inconvenienced or restricted access to some of our account holders,” said Mark Hinkle, an SSA spokesman. “We are listening to the public’s concerns and are responding by temporarily rolling back this mandate. As before July 30 (when the text messaging requirement began), current account holders will be able to access their secure account using only their username and password.”

Text messaging remains an authentication option and the agency continues to “highly recommend the extra security” it provides, but it is not mandatory. SSA is developing an alternative method that will be available within six months.

Sen. Susan Collins (R-Maine), chairwoman of the Senate Special Committee on Aging, praised the agency’s decision. “I was troubled that the policy would have placed a high burden on seniors, many of whom do not own a cell phone,” Collins said in a statement released Monday. “While the Social Security Administration should develop ways to enhance security to prevent fraud, they must take into account the needs of seniors and ensure that they have easy access to their accounts.”

On Friday, she and Sen. Claire McCaskill (Mo.), the committee’s top Democrat, sent a letter to Carolyn W. Colvin, SSA’s acting commissioner, that said the agency’s security concerns must be balanced with a realistic understanding of its clients.

“According to a 2014 study from Pew Research Center, almost a quarter of people age 65 and older in the United States do not have a cell phone,” they wrote.

Perhaps more to the point, that report, based on 2013 data, indicated just 18 percent of the seniors used smartphones, which are better equipped for texting.

“In addition, a significant number of Americans lack access to reliable cell phone service,” the senators added. “On top of both of those factors, many disabled and older Americans receiving Social Security are not as technologically savvy as other segments of the population.”

But don’t think old folks are the only ones technologically challenged. That also applies to SSA’s cyber systems.

The agency’s website showed a notice on Aug. 2 that “due to high volume of traffic, users may have experienced problems receiving security codes,” Collins and McCaskill said in the letter. “The identification methods effectively locks users out of their own accounts and could prevent them from accessing necessary information or making important account changes.”

Rep. Elijah E. Cummings (D-Md.) blamed Republicans for SSA’s outdated cyber system, as he noted the 81st anniversary, Aug. 14, of the date President Franklin D. Roosevelt signed the Social Security Act of 1935. It created the program that eventually serves almost all Americans.

“Senseless budget cuts have already resulted in extended wait times for seniors calling Social Security’s 800 number, reduced operating hours at the field offices visited by more than 40 million Americans annually, and delays that are averaging more than 500 days for the more than one million Americans waiting for adjudicative hearings,” he said in a statement. “Underfunding the Social Security Administration has also affected the agency’s efforts to modernize its 40-year-old IT infrastructure and address evolving cyber risks.”

CMS Increases Mandatory Enforcement to Protect Nursing Home Residents

September 22, 2016

Under the federal Nursing Home Reform Law, the Centers for Medicare & Medicaid Services (CMS) has authority and the “responsibility”[1] to impose Civil Money Penalties (CMPs) and other enforcement actions at nursing homes that are found to violate federal standards of care (which are called Requirements of Participation).[2]  For the first time in more than 20 years – since the federal enforcement regulations were published in 1994[3] – CMS has increased the numbers and types of situations when CMPs must be imposed against facilities, without first giving the facilities an opportunity to correct their noncompliance.

Effective for all nursing home surveys completed on or after September 1, 2016, CMS’s new national policy mandates, under additional specified circumstances, the immediate imposition of CMPs at nursing homes.[4]  The new policy will be implemented through revisions to Chapter 7 of the State Operations Manual (SOM), Pub. 100-07.[5]

The most striking changes are requirements that CMS impose immediate CMPs when a facility is cited with:

(1) A harm-level deficiency (level G or above)[6] in three specified areas:

  • 42 C.F.R. §483.13, Resident Behavior and Facility Practices [restraints],
  • 42 C.F.R. §483.15, Quality of Life, or
  • 42 C.F.R. §483.25, Quality of Care, and

(2) A harm-level deficiency in any other regulatory requirement on a previous survey, whether the prior survey was an annual survey, a Life Safety Code survey, or a complaint survey.

These revisions to the so-called “double G” policy, which currently limits the immediate imposition of CMPs to facilities that were cited with G-level deficiencies in two consecutive annual surveys,[7] are significant, especially when viewed historically.

Historical Background

On July 21, 1998, President Bill Clinton introduced the “double G” policy as one part of his 21-point Nursing Home Initiative.  The nursing home industry was strongly opposed and argued, in a March 1999 press release, that G-level deficiencies were cited for trivial matters.  Senator Charles Grassley (R, IA), then chairman of the Senate Special Committee on Aging, asked the American Health Care Association (AHCA) to identify G-level deficiencies that it felt were unfair.  The Senator then asked the Government Accountability Office (GAO) to analyze the 10 examples that AHCA provided in a May 6, 1999 letter.  AHCA claimed that its 10 examples “are clearly symptomatic of a regulatory system run amok.”[8]  Seven involved higher scope and severity than AHCA considered warranted and three involved proposed terminations.

The GAO’s analysis “did not find evidence of inappropriate regulatory actions.”[9]  Reviewing the eight examples for which it had “sufficient information for an objective assessment,” the GAO reported that the states had taken “appropriate regulatory action.”[10]  Of the seven G-level deficiencies, the GAO found that three citations were justified, the GAO did not have sufficient information to analyze two other deficiencies, and states withdrew the citations in the other two cases when the facilities provided additional information that had not been provided to surveyors during the survey.[11]  The GAO also cited its then-recent report, which found that 98% of 201 actual harm deficiencies in 107 surveys were correctly cited.[12]

New Enforcement Methods

As in the past, the new enforcement policy requires immediate CMPs when facilities are cited with immediate jeopardy deficiencies, the highest category of deficiencies reflecting practices that did or could cause significant harm or death to residents.  Under the new policy, however, these CMPs cannot be rescinded.

Another change is the requirement that CMS impose immediate CMPs at Special Focus Facilities that are cited with deficiencies at level F or above.  Special Focus Facilities are those with “a history of serious quality issues” that are subject to two standard surveys each year and more rigorous enforcement actions.[13]

More Needs to Be Done to Protect Residents from Poor Care

While the new policies strengthen enforcement against facilities that are cited with the most serious deficiencies, comparatively few deficiencies are actually cited at the immediate jeopardy and harm levels.  CMS reported in its 2015 Data Compendium that in 2014, only 0.9% of deficiencies nationwide were cited with an immediate jeopardy deficiency and only 2.3% of deficiencies nationwide were cited with an actual harm deficiency.[14]

The GAO has reported repeatedly since the enforcement system was put in place in 1994 that state survey agencies undercite and undercode deficiencies.[15]  The Center for Medicare Advocacy’s study of antipsychotic drug deficiencies cited in seven states in 2010 and 2011 found that 95% of the deficiencies were cited at a no-harm level, regardless of the poor outcomes for residents, the total number or proportion of residents affected by the deficient practice, and the number of federal requirements violated by the facility.[16]  Only 15 harm-level deficiencies were cited in the two-year period, and one state cited 11 of them.[17]  In a separate analysis, the Center showed that even facilities cited with immediate jeopardy deficiencies in nurse staffing are frequently not sanctioned at all.[18]

In addition, CMS has not yet promulgated rules to increase the amounts of CMPs, as required by The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.[19]  The law requires the heads of federal agencies to adjust civil money penalties through interim final rulemaking – a so-called “catch up adjustment” – with the increased penalties effective no later than August 1, 2016, and thereafter, to make cost-of-living adjustments to federal penalties.  The nursing home Civil Money Penalties were set in 1994 and have not been increased for more than two decades.  Rules to reflect the 2015 legislation are expected to be published shortly.

August 17, 2016 – T. Edelman


[1] “It is the duty and responsibility of the Secretary to assure that requirements which govern the provision of care in skilled nursing facilities under this subchapter, and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”  42 U.S.C.  §§1395i-3(f)(1), 1396r(f)(1), Medicare and Medicaid, respectively.
[2] 42 U.S.C. §§1395i-3(h), 1396r(h), Medicare and Medicaid, respectively.
[3] 42 C.F.R. §488.438, added by 59 Fed. Reg. 56116 (Nov. 10, 1994), https://www.gpo.gov/fdsys/pkg/FR-1994-11-10/html/94-27703.htm.
[4] CMS, “Mandatory Immediate Imposition of Federal Remedies and Assessment Factors Used to Determine the Seriousness of Deficiencies for Nursing Homes,” S&C: 16-31-NH (July 22, 2016, revised 7.29.16) (Memorandum from David R. Wright, Director, Survey and Certification Group, to State Survey Agency Directors), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-31.pdf.
[5] https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf (Survey and Enforcement Process for Skilled Nursing and Nursing Facilities).
[6] CMS classifies deficiencies in a 12-box grid, reflecting the scope and severity of deficiencies.  Harm-level deficiencies (G, H, I) reflect the second highest level of deficiencies.
[7] State Operations Manual, Pub.No. 100-07, Chapter 7, §7304.2.1 (“Mandatory Criteria for Having No Opportunity to Correct”), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf.
[8] AHCA’s letter is Enclosure A, pages 12-14, in GAO, Nursing Home Oversight: Industry Examples Do Not Demonstrate that Regulatory Actions Were Unreasonable, GAO/HEHS-99-154R (Aug. 13, 1999), http://www.gao.gov/assets/90/89202.pdf
[9] GAO, Nursing Home Oversight: Industry Examples Do Not Demonstrate that Regulatory Actions Were Unreasonable, GAO/HEHS-99-154R, page 2 (Aug. 13, 1999), http://www.gao.gov/assets/90/89202.pdf.
[10] Id. 
[11] Id.
[12] Id., citing GAO, Nursing Homes: Proposal to Enhance Oversight of Poorly Performing Homes Has Merit, http://www.gao.gov/assets/230/227568.pdf.
[13] CMS, Special Focus Facility Initiative, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/downloads/sfflist.pdf.
[14] CMS, Nursing Home Data Compendium 2015 edition, page 48, Figure 2.2.3, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/nursinghomedatacompendium_508-2015.pdf.
[15] See, e.g., GAO, Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses, GAO-08-517 (May 2008), http://www.gao.gov/assets/280/275154.pdf; GAO, Nursing Home Reform: Continued Attention Is Needed to Improve Quality of Care in Small but Significant Share of Homes, GAO-07-794T (May 2, 2007), http://www.gao.gov/assets/120/116452.pdf; GAO, Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents, GAO-07-241 (March 26, 2007), http://www.gao.gov/assets/260/258016.pdf;  GAO, Nursing Homes: Despite Increased Oversight, Challenges Remain in Ensuring High-Quality Care and Resident Safety, GAO-06-118 (Dec. 28, 2005), http://www.gao.gov/assets/250/248869.pdf; GAO, Nursing Home Quality: Prevalence of Serious Problems, While Declining, Reinforces Importance of Enhanced Oversight, GAO-03-561 (July 15, 2003), http://www.gao.gov/assets/240/238941.pdf.
[16] Center for Medicare Advocacy, “CMA Report: Examining Inappropriate Use of Antipsychotic Drugs in Nursing Facilities” (CMA Alert, Dec. 12, 2013), http://www.medicareadvocacy.org/cma-report-examining-inappropriate-use-of-antipsychotic-drugs-in-nursing-facilities/.  The full report is available at http://www.medicareadvocacy.org/cma-report-examining-inappropriate-use-of-antipsychotic-drugs-in-nursing-facilities/.
[17] Id.
[18] Center for Medicare Advocacy, “Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned,” CMA Alert, March 7, 2014), http://www.medicareadvocacy.org/staffing-deficiencies-in-nursing-facilities-rarely-cited-seldom-sanctioned/.
[19] Section 701 of the Bipartisan Budget Act of 2015, Pub. L. 114-74.  See Center for Medicare Advocacy, “Budget Act of 2015 Increases Penalties for Programs under the Social Security Act, Including Nursing Facilities” (CMA Alert, Nov. 18, 2015), http://www.medicareadvocacy.org/budget-act-of-2015-increases-penalties-for-programs-under-the-social-security-act-including-nursing-facilities/.

Legal and Care Planning for People with Multiple Sclerosis

September 22, 2016

Elder Law and Special Needs Planning attorneys can help people diagnosed with Multiple Sclerosis and their families understand the complex issues legal and planning issues they face. Members of the National Academy of Elder Law Attorneys are dedicated to serving people as they age and people with disabilities. Members of NAELA can help coordinate care by working with a network of other professionals as well as provide legal solutions tailored to meet the specific needs of each client.

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