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
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

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

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
law-business.com
 
©2014 John B. Payne, Attorney
 
 

An End to the Dreaded Plateau

On July 24, 2010, an article entitled “The Dreaded Plateau” appeared in this blog. It explained why some Medicare patients have trouble getting their full 100 days of skilled care or rehabilitation. The recent settlement of a federal class lawsuit addressed the “progress” requirement often incorrectly applied to patients in skilled care. The progress requirement is also referred to as the “improvement standard.”

Medicare covers up to 100 days of skilled care or rehabilitation. Rehabilitation or skilled nursing facilities will issue a Notice of Medicare Skilled Care Termination as soon as there is any doubt that the patient needs skilled care. Often the reason given is that the patient has reached a “plateau” in his or her progress. That requirement is not supported by Medicare law, but it was used by facilities and permitted to be used by the Centers for Medicare and Medicaid Services (CMS), the federal oversight agency for federally-supported health care programs.

The attorneys at the Center for Medicare Advocacy (CMA) are are true heroes in the battle to maintain a reliable, healthy Medicare program and in the struggle to help Medicare members get the best possible care. In conjunction with Vermont Legal Aid and other advocates, CMA achieved a landmark settlement with CMS. In Jimmo v. Sebelius, No. 11-cv-17 (D.Vt.), filed January 18, 2011, a proposed settlement was reached October 16, 2012. When the agreement is signed by the judge, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary “improving.” New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare. This settlement is described in detail on the CMA website.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2012 John B. Payne, Attorney
 
 

Filial Responsibility — Paying for Relatives’ Nursing Care

Parents are often very close-mouthed about their estates and affairs. Although adult offspring do not have a general right to enquire about their parents’ finances and estate plans, circumstances may arise that generate concern. Long-widowed elders may come under the influence of younger caregivers or neighbors. I had an 82-year-old client who fell for and married a 46-year-old gold digger.

Financially unsophisticated persons may be vulnerable to agents selling questionable investments. One of my clients loaned $50,000 to a friend of her unscrupulous financial planner. The loan was on a promissory note – not a mortgage – supposedly secured by a medical building in Arizona. Unscrupulous financial planners are not always operating out of cheap offices over bodegas. Banks often persuade depositors to buy unsuitable annuities.

Many sons and daughters who had assumed that their parents were comfortably well off find that they are living hand-to-mouth because their assets have been mismanaged or even stolen. Adult offspring may be hesitant to enquire too closely, but they have a legitimate concern – filial responsibility. Family members may be ordered to support indigent relatives in many states. Pennsylvania has a law that explicitly requires sons and daughters who have means to do so to support their needy parents, and vice versa. The statute places “responsibility to care for and maintain or financially assist an indigent person” on the person’s spouse, son or daughter, and parent. 23 Pa.C.S.A. § 4603(a)(1).

For a really scary case in which a court ordered a son to pay $93,000 to a skilled nursing facility for his mother’s care, see HCR v. Pittas, 2012 Pa. Super 96 (May 7, 2012). The Pittas case is alarming for many reasons. The court awarded the mother’s nursing home $93,000 for a six-month stay. This in itself is odd – nursing-home costs in Pennsylvania generally do not exceed $8,000 per month. Furthermore, the court failed to analyze the son’s financial means properly. The court noted that the son had income of $85,000 per year, but did not consider his support obligations for other dependants or his own financial needs, as the statute requires. Additionally, the statute under which the court awarded damages is a “support” statute which normally would not apply to past obligations. There are many aspects of the court’s decision that are out of kilter, but it provides an object lesson on the possibility that adult children and parents could be ordered to pay for care of family members in nursing homes.  On March 27, 2013, the Pennsylvania Supreme Court denied review.

Michigan law only imposes a support obligation on parents for indigent children, but sons and daughters who sign as guarantors for their parents at nursing homes or assisted living facilities may be sued for the care. I have had several clients who were being sued for their parents’ care.

Gifts and loans to relatives can give rise to liability if the person who made the gift or loan goes into a nursing home and needs Medicaid within five years. The Medicaid agency my deny coverage for nursing home costs. If the nursing home is unpaid, it may sue to recapture gifts or loans.

Older people do not have it easy and the government creates additional hazards. In addition to health problems and the loss of family and friends, the government closely examines their financial history if they are unfortunate enough to be in a nursing home and apply for Medicaid. The Medicaid agency assumes that anyone over 65 is waiting eagerly for the chance to get into a nursing home and apply for assistance. Younger family members have a legitimate concern for their seniors’ financial security. Over and above the fact that they care about their parents’ and other older relatives’ comfort and peace of mind, those younger family members could be required to provide financial support. Pointing this out to the loved ones may make it easier to raise difficult financial questions.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2012 John B. Payne, Attorney
 
 

Schuette Loses Estate Recovery Cases

I recently posted about my one-and-one record in estate recovery cases. Singin’ the One and One Blues I am saluting two fellow litigators who went to the mat against Bill Sweaty and won by posting the decisions on my website. The Wayne County decision by Hon. Freddie G. Burton, Jr., which is an example of excellent jurisprudence, reflects the sterling advocacy of Kevin Gilhool. Wayne County Decision Like me, Kevin has offices in two states — Michigan and Florida — and I am sure he does an excellent job for his clients in both.

Doug Chalgian, a pillar of the bar in both elder law and probate — or maybe a pillar of elder law and a post of probate — received the other decision in Clinton County. That decision, by Hon. Lisa Sullivan, was also an example of outstanding legal scholarship. Clinton County Decision

If the links above do not work, the decisions can be found at Law-Business.com. Congratulations to Doug and Kevin. Good work, chaps.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2012 John B. Payne, Attorney