Nursing Home Law Blog : Nursing Home Lawyer & Attorney : Stark & Stark Law Firm : Elder Care, Senior Care

As the President works his groundbreaking legislation through Congress, opponents cry foul over medically-based lawsuits. Absent from that portion of the debate are the estimated $220 billion dollars per year in fraud perpetrated by the very folks who complain about so-called defensive medicine. Let's point our efforts in the right direction: Eliminating Fraud.

The George Washington University Medical Center Report on Health Insurance Fraud

 

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Hot off the press is some very good news about generating more accountability for those who choose to profiteer off of the elderly and infirm. Below is an email alert I received from The National Consumer Voice For Quality Long-Term Care detailing the changes the bill will provide:

 

Nursing Home Transparency Clears Another Round As House Votes on Health Care Reform

The 1990-page health care reform bill passed by the House of Representatives just before midnight Saturday includes not only sweeping health insurance reforms but also nursing home transparency, criminal background checks on long-term care workers, and a voluntary payroll deduction system that would provide benefits for long-term care services. The bill, H.R. 3962, the Affordable Health Care for America Act, can be downloaded here. 

As expected, the bill includes-without amendment-nursing home transparency provisions requiring:

• Public disclosure of individuals and entities that own, govern, operate, finance, provide services to, and/or control the nation's nursing homes.
• Compliance and ethics programs and internal quality assurance programs in nursing homes, and pilot projects to test ways to improve oversight of chains.
• Collection and reporting of staffing information based on payroll data, including hours of care per resident day, turnover and retention rates, and facility expenditures for wages and benefits.
• A review of Nursing Home Compare and addition of information about sanctions against facilities and the number of adjudicated crimes occurring in them.
• A categorical breakdown of expenditures on cost reports to show how much facilities spend on direct care versus other expenses.
• An improved state complaint process to help protect complainants against retaliation.
• An increase in federal civil monetary penalties and a process to hold CMPs in escrow during appeals (although only after an independent informal dispute resolution process was completed).
• Adequate notification when facilities decided to close, including the option for the government to continue reimbursement until relocation was achieved.
• Training of nursing assistants in dementia care and abuse prevention.
• The bill would authorize a program of national criminal background checks on all long-term care workers who have access to residents or patients--from those who provide in-home long-term care services to nursing home employees.

H.R. 3962 also incorporates the Community Living Assistance Services and Supports (CLASS) Act to create a national voluntary social insurance system through which enrollees who became disabled (after paying into the system for at least five years) could purchase community-based long-term care, services or supports. Nursing home residents who were Medicaid beneficiaries could retain 5 percent of their benefit, in addition to their personal needs allowance, for their personal use while the remainder was applied to the cost of their care. (See page 1562 of the bill.)

Last-minute efforts to add the Elder Justice Act to H.R. 3962 were not successful. The EJA is in the health care reform bill passed by the Senate Finance Committee. 

In the coming weeks, the focus of health care reform will be on the Senate, where Senate leaders are trying to meld bills passed by the Finance (S. 1796) and HELP (S. 1679) committees and to find enough votes to pass the resulting bill. Any bill that passes the Senate will have to be reconciled with H.R. 3962 to create a final health care reform bill to be voted on by both houses. Nursing home transparency and other long-term care provisions will remain at risk of being amended or dropped as this delicate and highly political process goes forward.

NCCNHR will provide additional policy bulletins on H.R. 3962, continuing coverage of long-term care issues in health care reform, and Action Alerts to let you know how and when your voice can be crucial.
 

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The Urban Institute estimates that the number of Americans who will require assisted living or nursing home care will increase by more than 50% between 2000 and 2040. As that number continues to grow, it is becoming increasingly more difficult for state and federal regulators to keep track of each and every facility, which is leading to an epidemic of improper care for our elderly.

The Nursing Home Transparency and Improvement Act of 2009 was recently introduced as part of the controversial health care reform legislation currently before Congress. A similar bill was proposed, and failed, just last year. A key component of the bill would require Nursing Home Compare to list the number of criminal violations by each nursing home facility, or crimes committed by their employees. Additionally, each state would have to post survey reports online detailing the inspector’s findings. These provisions are just the first steps in a much needed effort to protect those Americans in assisted living facilities. 

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Although all experts agree that the primary cost faced by nursing homes is labor, studies and articles often fail to obtain the full picture of the expenses that many facilities face.  This is the financial drain that flows through many facilities right to the owners.  In many facilities, profit is hidden in extraordinarily high rent being paid to real estate investment trusts (REIT's), excessive management fees and other costs - all to the same people who own the nursing home.  This has been reported by the New York Times and is currently being investigated by congress.

Here is an article about the highest nursing home costs in the United States.

 

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I am very gratified that as recently as October 7, 2008, the Nursing Home Transparency and Improvement Act of 2008 has now made its way into the United States House of Representatives, supported by two Democratic members of the House, along with both a Democrat and Republican from the Senate. The Act is being improved to include many more provisions, not only to produce transparency with regard to the problems we see these days with ownership, but additionally, to include much more with regard to improvement of resident care. The fact that this bill enjoys bipartisan support hopefully bodes well for its eventual passage.

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I found an article online recently that discusses a new law in New Jersey that will require hospitals and nursing homes to have appropriate lifts and patient handling equipment available for patients. The new legislation also requires a training program on all of the new equipment for all hospital and nursing home staff members.


The new law will go into effect immediately and will hopefully improve the level of care for all residents impacted by this new legislation. You can read the full article online here.

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I found an article the other day relating to recent legislation that passed in Tennessee to increase options for elderly health care. Two bills sponsored by Tennessee Sate Senators passed the Senate aimed at helping elderly or disabled Tennesseans receive more options in their health care, including staying in their homes for as long as possible.The long term care legislation is part of a series of bills aiming to help citizens “age in place.”


The two bills will broaden the definition of assisted living to include hospice services and make it clear that any assisted-care living facility resident who qualifies for hospice care under Medicare can continue those services and also receive reimbursement for assisted living services.


I think this is a wonderful piece of legislation that I hope will make its way across the country in order to provide increased assistance for our elderly. You can read more on the bills here.

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Call Comes as a Result of New York Times Analysis of Nursing Homes Across the Country

Washington, DC – Citing a September 23 New York Times article that reviewed more than 15,000 nursing homes across the country, Senator Hillary Rodham Clinton today called for a Government Accountability Office (GAO) investigation to examine the nation's long-term care infrastructure. In a letter to Comptroller General of the United States, David M. Walker, Senator Clinton expressed her concern over accountability and the ability of the states and federal government to provide appropriate oversight and sanctions, and highlighted the decline in the quality-of-care related to the purchase of nursing home facilities by private investment groups.

"I am deeply concerned that these new ownership structures may allow private investment firms to effectively control, and profit from, the operations of nursing homes without taking a formal ownership or management stake in the nursing home itself. As a result, these hybrid structures may make it difficult, if not impossible, for federal and state regulators to identify and effectively penalize repeat offenders," Senator Clinton wrote.

"The vast majority of the nation’s nursing homes provide quality care to their residents,” Clinton emphasized. "But the abuses cited in the story are intolerable and we must do all that we can to weed them out and shut them down."

[A copy of Senator Clinton’s letter to the GAO follows]

The Honorable David M. Walker
Comptroller General of the United States
United States Government Accountability Office
441 G Street, N.W.
Washington, D.C. 20548

Dear Mr. Walker:
An article in the September 23rd edition of The New York Times on the abhorrent conditions in a number of nursing homes across the country reinforces my concern that we are not doing enough to protect and care for our seniors living in long-term care facilities. The article documented a troubling trend— that facilities which are purchased by private investment groups experience marked declines in the quality-of-care, alongside cuts in nursing staff and other resources. A review of more than 15,000 nursing homes since 2000 revealed that despite sub-standard conditions, these nursing homes and the private investment firms that purchased them have gone largely unsanctioned by federal and state regulators because they have employed complex hybrid ownership structures.

I am deeply concerned that these new ownership structures may allow private investment firms to effectively control, and profit from, the operations of nursing homes without taking a formal ownership or management stake in the nursing home itself. As a result, these hybrid structures may make it difficult, if not impossible, for federal and state regulators to identify and effectively penalize repeat offenders. As The New York Times analysis highlighted, regulators may be unaware that the same private investment firm is responsible for many seemingly unconnected nursing home operations. In addition, such ownership structures may obscure how Medicare and Medicaid dollars are being used, enabling nursing homes to inflate their own profits at the taxpayers’ expense.

These revelations come at a time of crisis in our nation’s long-term care infrastructure. Just last year, nearly one in every five nursing homes that received federal funds was cited for serious deficiencies in care. And earlier this year, we learned that, over the past five years, nearly half of the nursing homes that regulators had identified as having an established history of serious medical deficiencies continued to repeatedly fail federal requirements and still receive federal funds.

The vast majority of the nation’s nursing homes provide quality care to their residents. I believe the “bad apple” practices cited in The New York Times story are the exception, not the norm. Having said this, the abuses cited in the story are intolerable and we must do all we can to weed them out and shut them down.

I am confident that the long-term care industry can continue to flourish while ensuring our seniors receive the care they deserve. Private investment firms can have a constructive role to play in this market, helping restructure, retool and improve profitability at struggling nursing homes. However, this newly-released data linking hybrid ownership structures with serious quality-of-care deficiencies in our nation’s nursing homes raises important questions about accountability and the effectiveness of our existing regulatory framework. It also raises the critical issue of how inadequate staffing and a substandard commitment to health professional and paraprofessional recruitment and retention can decrease quality as well as patient and family confidence in the nation’ s nursing home industry.

For this reason, I would ask that you investigate the link between hybrid ownership structures of federally-funded nursing homes and poor quality of care. In particular, I would appreciate an assessment of the ownership structures of the 63 nursing homes that the GAO identified in March 2007 as having a history of serious deficiencies in care. Finally, I would ask that you make recommendations on any needed changes to the Centers for Medicare and Medicaid Services’ regulatory framework or other federal laws to bring greater transparency and accountability to federally-funded nursing homes.

I thank you for your attention to this matter. Please keep me apprised of the status of this request.

Sincerely yours,

Hillary Rodham Clinton

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The long-term care industry should expect Medicare cuts, a growing elderly population and an insufficient long-term care labor force in coming years. That is according to Alan Greenspan, former chairman of the Federal Reserve, who spoke Thursday at the NIC annual conference in Washington.

Medicare cuts loom, said Greenspan, who was a keynote speaker of the event, along with former House Speaker Newt Gingrich. The retired population also will double in the next 25 years, he noted.

Greenspan predicted that there would be insufficient labor available to care for the elderly, especially as the baby boom generation requires more services. "We don't have the physical resources," he said.

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A pending bill before the State Assembly in New Jersey would require the State to make available to the public more information about the ownership of long-term care facilities. This represents an excellent initiative in allowing consumers to better research the facilities which may ultimately provide care for their loved ones. The bill, A-2029, would require the Department of Health and Senior Services to make available through its website all information regarding the ownership of long-term care facilities which are licensed by that department. It would also require the listing of any owners who hold at least a 10% interest in the facility. It would similarly list the names of any other licensed long-term care facilities in New Jersey owned by the same individual or corporation. In the end, this can provide for greater accountability for those who own the facilities.

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I am pleased to report that Governor John Corzine recently signed into law the “Independence, Dignity and Choice in Long Term Care Act.” This law is reflective of a Supreme Court decision which requires the various states in the country to offer the least restrictive setting for a recipient’s Medicaid benefits. President Bush signed an executive order reflective of this decision in order that states implement it. In sum, states must place Medicaid recipients in an environment that is least restrictive, taking into consideration the Medicaid recipient’s medical needs. From a realistic point of view, the states must offer Medicaid recipients who are capable of living in the community, as opposed to the nursing home, a chance to stay in that community. The Independence, Dignity and Choice in Long Term Care Act reflect New Jersey’s implementation of the U.S. Supreme Court decision and President Bush’s directive. For more information, concerned family members should contact the New Jersey Department of Health and Senior Services, through the Global Options Nursing Facility Transition program (GO NFT).

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Related to New York’s aggressive work toward helping seniors stay in their own homes, Iowa house governor, Tom Vilsick, has been working toward the same end, with Iowa’s “senior living trust,” which encourages people to have the freedom and ability to live in their own homes with greater dignity and to avoid a nursing home before they were otherwise required to go. As with New York’s efforts, this would represent a significant savings of resource in the healthcare system and, more importantly, creates a much more dignified and healthy living environment for seniors.

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In keeping with the national trend toward redirecting public funds toward homecare as a preferable alternative to nursing homes, New York governor, Eliot Spitzer, in an early January address proposed shifting away from expensive institutional nursing homes toward community and home based alternatives. As confirmed by the acting director of a local office of aging, this is a proposal which has been talked about for years. It has been estimated that both families and the government can potentially save half of the money that a nursing home would cost and keep seniors at home. With a prominent national figure such as Eliot Spitzer pushing this important issue, it may indeed gain traction in the State of New York - if not elsewhere in the country.

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It has been estimated that 44 million Americans currently provide some type of unpaid care to disabled adults in their own homes. The new Lifespan Respite Care Act will provide some modest relief to these families, but not nearly enough. It is important for all citizens interested in this issue to speak to their local politicians to push for a much more aggressive program. As most healthcare practitioners know, but few consumers do, The Joint Commission (JCAHO) conducts surveys of nearly all hospitals and many long-term care facilities throughout this country. While it has been criticized by many as essentially constituting the fox minding the hen house, much good has been accomplished by The Joint Commission’s work over recent years. Most acute care facilities and a handful of long-term care facilities simply cannot get certain types of either private or public funding without accreditation from The Joint Commission in their survey process. In January of 2006, The Joint Commission changed a significant aspect of its survey process by including unannounced inspections. This is a welcome change and most likely will lead to greater credibility and more accountability from the surveys. In the end, the quality of healthcare will most likely benefit from this significant change. For more information about The Joint Commission and its efforts, you can visit their website here.

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In late December of 2006, lawmakers in Congress unanimously approved the “Lifespan Respite Care Act” authorizing nearly 300 million dollars in grants over the next five years to help provide aid to families hiring temporary help to relieve primary care givers. Ultimately, these funds will be administered through state agencies. In a rare demonstration of bipartisanship, both Democrats and Republicans joined to ensure passage of the Act. As well appreciated as the Act is, it has been estimated that 300 billion is most likely needed each year for American families faced with this situation. At present, our healthcare system does not sufficiently aid families in keeping loved ones at home and instead places them in the unenviable position of facing long-term care if they have any hope of receiving public funding. Many studies have concluded that home care not only is beneficial to the elderly resident, but additionally is much more efficient than the bulk of long-term care facilities in this country.

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