Sad End for Penn Treaty Insurance — Reblog

Jeff Marshall, a highly-respected colleague in Williamsport, Pennsylvania, documented the failure of Penn Treaty Insurance’s long-term care insurance products in “Sad End for Penn Treaty Insurance.”  The column is interesting and informative in describing the problems of the LTCI industry as the costs of long-term care steeply increased, while interest rates plunged and customers held on to their policies at much higher rates than expected.  Jeff’s column is also an excellent backgrounder to my post, “Long-Term Care Insurance — Smart Buy or Not?

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200

©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

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 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 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 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

©2016 John B. Payne, Attorney

Medicaid Processing Delays Hurt Applicants and Nursing Homes

Kansas Public Radio reports that Kansas nursing homes are being financially hamstrung by six- to eight-month delays in Medicaid approvals. If they accept residents who have not been approved for Medicaid, they may be stuck caring for them for months without being paid. As a result, nursing homes try to avoid accepting prospective residents unless they are already approved for Medicaid or have sufficient funds to pay for their own care. This makes it tough for families to place their loved ones where they can be properly cared for.

Residents of nursing homes who are pending Medicaid cannot be required to pay for their care at the rate charged residents who are paying privately. In most states, nursing homes charge upwards of $8,000 per month for care. However, Medicaid applicants and recipients do not pay more than their income – usually less than $2,000 per month. A six-month delay leaves the nursing home out on a limb for $36,000 or more per resident. Add to this the possibility that the resident may be determined ineligible for Medicaid due to a small asset discovered late in the application process and it is easy to see why Kansas nursing home operators are as nervous as Col. Sanders at a PETA rally.

The Kansas problem resulted from two bone-headed bureaucratic decisions that were not quite as catastrophic as Flint’s switch in water sources, but equally lame. The decisions also exacerbated serious fiscal and administrative problems in the state Medicaid program, which Gov. Sam “Trickle-down” Brownback privatized in 2013.  Last July the state made a botched switch to new eligibility determination software and this January – while the software change had the application process tied up in knots – eligibility processing was moved from the Department for Children and Families to the Kansas Department of Health and Environment. The unreasonable delays are not likely to end soon.

Michigan Medicaid pulled an equivalent blunder two years ago when it decreed that all applications and eligibility documents for the whole state should be transmitted to a Lansing fax number. The idea was to make the eligibility process paperless, but the software used was woefully inadequate to processing the volume of documents coming in. The system choked on the massive flow of data and much of what was sent in got lost in a virtual labyrinth for months. As later happened in Kansas, thousands of Medicaid applicants in nursing homes were subjected to months of delay or were wrongfully denied. To make matters worse, the “smart” system devised to sort the pages sent in did not recognize the types of verification it was seeing. Therefore, carefully organized applications with dozens of attachments went to the workers a jumbled mess.

Why can governors and high-level state administrators not understand that effecting massive changes in state government functions is not as easy as modifying the organizational chart? They get bright ideas and implement them without proper planning. In some cases, they move agencies between departments to reward friends or punish opponents. In others, they make changes for no more significant reason than that it makes the chart appear more balanced. Changing the names of departments and other organizational components is a favorite amusement.

The problem is that governors do not want to hear bad news and they certainly do not want to hear that their ideas are not brilliant. Michigan governor Rick “Let Them Drink Pepsi” Snyder will probably duck blame for the Flint water crisis because he was not told about it directly. The responsible parties in the Department of Environmental Quality and Department of Health and Human Services knew better than to inform him of the aquatic catastrophe.

Assume that a governor says, “These school shootings make me wonder if we shouldn’t arm safety-patrol members.” His chief-of-staff and other aides will know better than to ask if he knows that safety-patrols are made up of 10-year-old fifth-graders. They will know that what he wants to see is feasibility studies proving that it is a great idea.  Blasé disregard of responsible management is unfortunately the rule, rather than the exception. It is the reason our state governments are always lurching from crisis to crisis. That, and the tendency of voters to elect politicians who are neither smarter nor more perceptive than a fifth-grader.

John B. Payne, Attorney
Garrison LawHouse, P.C.
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124
313 563 4900

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800 220 7200

My Community, My Home: Pass the Disability Integration Act of 2015

Sen. Charles Schumer has introduced Senate Bill 2427, the Disability Integration Act of 2015.  If enacted, this bill would be like the Civil Rights Act for people threatened with placement in a nursing home. It would be a tremendous step forward in protecting the rights of persons with disabling conditions and implementing the guarantee of least-restrictive placement required by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). The court stated there that when an individual can receive appropriate care in a community setting and does not want to be placed in an institution, the state has an obligation, if the resources are available, to effect community placement.

Many persons with disabilities reside in nursing homes against their will because states do not have sufficient home- and community-based services (HCBS) to help them live safely and comfortably outside of long-term care facilities (LTCF). Every state has a “waiver” or HCBS program, but most of these programs are not sufficiently funded. The programs are called “waivers” because Medicaid funds were originally limited to care in LTCFs. The federal government set up HCBS funding to allow waiver of the limitation on the use of funds for care in LTCFs only.capitol-building-1

Most states have waiting lists for waiver services due to lack of funding and eligibility constraints to restrict the applicant pool. Waiver services are typically less costly per recipient than care in an LTCF, but states and the federal government have been reluctant to expand waiver programs because the demand would be so high. Almost no aged person wants to be placed in a nursing home, but nearly every aged person who needs assistance or supervision would want to receive care at home. By limiting Medicaid to those who are in LTCFs, demand for services is greatly reduced. There is also an inflexible income cap for waiver services that bars medium-income applicants from qualifying.

Another reason government policymakers limit HCBS is that they see it as problematic administratively. It is more difficult to ensure that the services purchased are delivered properly when performed in homes than when delivered in facilities.

The Disability Integration Act would require states to offer HCBS as an alternative to care in a nursing home to nearly anyone who could be adequately cared for in the community. In brief, the Act provides:

No public entity or LTSS [long-term services and support] insurance provider shall deny an individual with an LTSS disability who is eligible for institutional placement, or otherwise discriminate against that individual in the provision of, community-based long-term services and supports that enable the individual to live in the community and lead an independent life. Disability Integration Act, § 4(a), SB 2427.

The Act continues for more than 6,000 words defining and prohibiting the various ways states, insurance companies, care providers and others might make it difficult for persons with disabilities to get HCBS instead of being institutionalized. Despite the incredible need for legislation to implement what the Supreme Court has ruled is necessary and the tremendous benefit HCBS provides in avoiding care in nursing homes, one would have to be an incorrigible optimist to expect this Congress to do the right thing – whether or not there is cost involved. One would also have to be a grinning naïf not to perceive that this is an election-year ploy.

The Special Needs Fairness Act, which would benefit many persons with disabilities at no cost to the government, has languished in Congress for over two years. This dampens any expectation that a needed reform will move forward. Despite the dim prospects for SB 2427, it is a very good piece of legislation. Please urge your federal legislators to sign on to the Disability Integraton Act of 2015.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200

©2015 John B. Payne, Attorney

Protecting the Community Spouse’s Financial Security in Pennsylvania Revisited

Two years ago, this column asserted, “The Pennsylvania Department of Public Welfare has finally been forced to conform to federal law regarding annuities.”  It is still not that simple.  “Protecting the Community Spouse’s Financial Security in Pennsylvania” explained that the Commonwealth’s hearing officers are now complying with federal regulations and numerous court decisions that permit a “Community Spouse” of a person in a nursing home to protect all – that’s right, ALL — of his or her assets by putting them into a special annuity.  However, the Department of Public Welfare has not revised its written policies to conform to federal Medicaid law and the Pennsylvania legislature has not repealed statutes that federal courts have held unconstitutional.

Since these illegal provisions are still in the written policy, some Medicaid workers and supervisors continue to try to enforce them.  They refuse to open Medicaid if the assets transferred into the annuity exceed the 2014 “snapshot” maximum, $117,240, or if the income from the annuity puts the Community Spouse’s income over the 2014 income limit which varies between $1,939 and $2,931, depending on shelter expenses.  Some County Assistance Offices comply with the federal requirements, but others do not.  The worker in one such case sat on an application for close to a year before denying Medicaid because income from the annuity used to protect additional assets pushed the Community Spouse over the income limit.

In a managerial conference regarding this denied case, the second-level manager agreed to request “clarification” from the DPW legal department.  Less than 24 hours later, he called and said the case would be opened.  He was told by DPW’s legal counsel that the bulletin he relied on to deny eligibility was no longer valid.

DPW is still using invalid written policies to bully applicants and scare them away from exercising their rights.  However, with assertive advocacy and willingness to take the matter to a hearing, a Community Spouse’s financial security can be protected.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2014 John B. Payne, Attorney

Montana Judge Dumps Filial Responsibility Lawsuit

In a recent post, a poorly-reasoned Pennsylvania Superior Court case was discussed.  That case is HCR v. Pittas, in which the court stretched the Commonwealth’s filial responsibility statute to impose liability for a mother’s nursing care on a son under circumstances that the statute should not cover.  A Montana judge rendered a decision on July 2, 2013 that is much more appropriate.  In Heritage Place, Inc. v. Jerrell, Cause No. DV-11-430(D) (11th District Mont. July 2, 2013), Hon. David M. Ortley held that a nursing home could not impose personal liability on a son for his mother’s nursing care bill under either a common-law filial responsibility basis or an oral personal guarantee.  He observed that both state and federal law prohibit a nursing home from demanding a third-party guarantee with regard to a resident’s nursing care expense.  Thank you Judge Ortley.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2013 John B. Payne, Attorney