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long-term care

Gov. Walker Plans to Slash Autonomy in Long-Term Care for the Disabled

Disability rights advocates in Wisconsin are dismayed about a plan that would eliminate the autonomy that people with disabilities have to self-direct some of the money expended by the state government for their care. Wisconsin Governor Scott Walker has put forth a plan for long-term care for people with disabilities that would lead "the Department of Health Services to cease operation of other long-term care programs or waivers, including IRIS — a program for self-directed long-term care. IRIS currently has more than 11,000 participants, who choose the program because of their ability to self-direct their supports, including hiring their own caregiver," The Capital Times' Jessie Opoien reports.

Rule Would Require Nursing Home Industry to Recognize Same-Sex Marriages

The Centers for Medicare and Medicaid Services has proposed a rule that would require long-term care facilities to extend spousal rights to same-sex married couples, McKnight's Tim Mullaney reports. CMS said in the proposed rule "'our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the healthcare provider or supplier is located.'"

Even in states that don't recognize same-sex marriage, the stick to make facilities follow the rule would be that their funding from Medicare and Medicaid would be contigent on their obedience to the regulation.

More Health Care Means More Liens

The Centers for Medicare and Medicaid Services has clarified that most of the rules of when liens are asserted by the government to recover the money spent on Medicaid health care for long-term care will apply to people who are getting Medicaid under the Affordable Care Act expansion, The Southern reports. States are entitled to asset recovery for all health care benefits, but CMS hopes that states will only impose liens and try to recover from estates for nursing home cases, The Southern also reports.

Separately, NJ.com reports that the "Affordable Care Act encourages states to expand their Medicaid rolls so single people and childless couples can now qualify if poor enough. That means thousands of newcomers to Medicaid may not realize that ultimately they may have to repay the piper."

Don't Take Grandma's House: How Will Liens Apply to New Medicaid Patients?

Many more people are eligible for Medicaid under the Obamacare expansion: adults with incomes under 133 percent of the poverty level. Can the government recover the expenses paid out for these new Medicaid enrollees through liens on their properties and recoveries from their estates?

The Health Affairs blog reports on how the Centers on Medicare and Medicaid Services is advising states on applying liens to consumers who are getting Medicaid under the new expansion. Elderly Americans often get their long-term care paid through Medicaid, but there has been a concern that people "would voluntarily impoverish themselves, transferring assets to their children or to others to make themselves eligible for Medicaid," the blog reports. Medicaid can impose liens on people's houses and other assets to get that long-term care paid back. Now the questions is how the rules about liens should be applied to people who are newly eligible for Medicaid under the Obamacare expansion.

The first upshot, the blog reports, is that liens can't be placed on the property of new Medicaid enrolees. The second upshot is that CMS advises states to try to recover from the estates of new Medicaid receipients who receive long-term care, but not other types of care: "In sum, most of the rules that apply to traditional Medicaid recipients with respect to [long-term care services and supplies] LTSS (except for lien requirements) are likely to apply to [modified-adjusted gross income] MAGI-eligible individuals who receive LTSS.  CMS intends, however, to take steps to avoid applying estate-recovery rules to [modified-adjusted gross income] MAGI-eligible individuals who do not receive LTSS to keep this from becoming a barrier to Medicaid expansion eligibility."

Medicaid Liens Could Trip Up Obamacare Expansion

As health-care expands in an effort to cover all Americans, the Medicaid expansion could mean that more people over the age of 55 will face liens being placed on their assets for their care, according to a report in BenefitsPro. "Washington and many other states, including California, Florida and New York, interpret the [federal] regulations to mean that they should use liens to try to recover any money spent by Medicaid on any care for people ages 55 and older, not just for long-term care specifically," BenefitsPro also reports. But regulators in Washington issued an emergency rule to limit lien recoveries only to Medicaid funds spent on long-term care in order to reduce a disincentive for people to sign up for health-care coverage, BenefitsPro concludes

Unregulated Assisted Living Leaving the Elderly At Risk

ProPublica reports on the lack of regulation for assisted living and how this puts the elderly at risk.

Nursing homes for elder Americans (who tend to need much more skilled nursing care than the elderly living in assisted living facilities) face much stricter regulation. Not so with "assisted living facilities, [which] at least initially, were meant to provide housing, meals and help to elderly people who could no longer live on their own," ProPublica reports.

Assisted living facilities tend to be free to decide how much staff their facilities should have and don't have to be inspected by outsiders very frequently.

 

Pennsylvania Superior Court Upholds Punitive Damages In Nursing Home Case

Submitted by Amaris Elliott-Engel on Tue, 10/01/2013 - 20:47

The Pennsylvania Superior Court has upheld a jury's decision to award punitive damages over the death of a nursing-home and hospital patient whose bed sores led to an infection that went septic in his body, the failure of one of his kidneys and his eventual death.

According to the opinion, the jury found nursing home Hillcrest Center and Jeanes Hospital each 50 percent liable for the April 18, 2008, death of Joe Blango. The jury awarded $1 million in compensatory damages against both defendants, $1.5 million in punitive damages against Jeanes Hospital and $3.5 million in punitive damages against Hillcrest Center. Philadelphia Court of Common Pleas Judge George W. Overton reduced Jeanes' punitive damages award to $500,000 and Hillcrest's punitive damages award to $1 million.

The court split on upholding the trial judge's decision to diminish the punitive damages. The majority instructed the trial judge to increase punitive damages by another $500,000 against the hospital. But one dissenting judge on the three-judge panel would have restored the jury's award entirely.

One of the plaintiff's experts testified the development of a bedsore at the top Blango's buttocks was the source of the infection that went septic throughout his body, Judge Kate Ford Elliott said in her unpublished opinion today.

The wound tested positive for both e-coli and MRSA bacteria, according to the opinion. Blango's kidney was infected as a result, and his kidney had to be removed, Ford Elliott said.

There was testimony Blango was not frequently repositioned and did not have his diapers changed habitually during 18 days of treatment by the two healthcare facilities, Ford Elliott said. There also was testimony that Blango was not eating his food, but was not fed by staff nor offered liquid food.

According to the majority opinion, Blango was first admitted to the hospital for a five-day stay after being found, after a stroke, in a state of not moving or speaking. Then he was transferred to the nursing facility for 10 days, and then he was transferred back to the hospital for another three days. After those 18 days, Blango was transferred to another Philadelphia-area hospital where his family first learned of the bedsore in the area at the top of his buttocks. The bedsore never healed.

There was sufficient evidence for the jury to find that the hospital acted with reckless indifference, Ford Elliott said on behalf of all of the panel, including not communicating the condition of Blango's skin when he was transferred the first time from the hospital to the nursing home.

In another example of reckless indifference, during Blango's readmission to the hospital “there was evidence that the hospital failed to turn and reposition Mr. Blango every two hours as required,” Ford Elliott said. A Jeanes Hospital nurse “testified that the hospital was chronically understaffed. Mrs. Blango testified that nursing staff at the hospital repeatedly ignored her requests to change her husband's diaper, and he was always left on his back. There was no attempt to help Mr. Blango use the bathroom or a bedpan instead of adult diapers.”

Hillcrest settled the case during appellate mediation, Ford Elliott said in a footnote. The court did not undertaken any analysis of Hillcrest's liability.

Plaintiff's trial counsel Churchill H. Huston, of the Maher Law Firm in Philadelphia, said in an interview that the case is a hybrid one because it involved a verdict against a hospital and a nursing home. “It speaks to [that] this kind of neglect--whether it's a nursing home or a hospital--the way you prevent a bedsore doesn't change,” Huston said.

The fact that an injury occurs in a medical setting does not mean that all liability stems from medical decision-making and thus requires expert testimony about the standard of care, Huston said.

Bed sores are an issue of simple neglect, Huston said, while the failure to order the right course of treatment would require expert testimony.

“If it's an issue of professional negligence, then you would need expert testimony to support your claim,” Huston said. “If it's an issue of simple negligence, then the testimony of a lay witness is sufficient to support that claim.”

Huston said his firm may seek to have the opinion published as citable case law.

A two-judge majority, including Ford Elliott and Senior Judge James F. Fitzgerald III, decided that the trial judge did not abuse his discretion in remitting the punitive damages, including because of the testimony of Jeanes Hospital's chief financial officer that the facility is not-for-profit and losing money.

While the trial judge said he reduced the ratio of damages to be 2:1 for Jeanes Hospital, the judge's remittitur actually resulted in a 1:1 ratio, Ford Elliott said, but “it seems clear that the trial court intended to reduce punitive damages to a 2:1 ratio, i.e., from $1.5 million to $1 million. Furthermore, as the trial court stated in its opinion, a 2:1 ratio is a reasonable relationship between punitive and compensatory damages in this case and satisfied due process,” Ford Elliott said.

The majority ordered a punitive damages award of $1 million, instead of $500,000, be entered on remand against Jeanes Hospital.

In dissent, Judge Sallie Updyke Mundy said that she disagreed with the trial court's reduction of the punitive damages award because she discerned “no abuse of discretion or constitutional infirmity in the initial $1.5 million punitive damage award,” she said.

A private lien from Blango's union health insurance was asserted and then resolved out of the settlement with the nursing home, Huston said.

The settlement amount with nursing home is confidential, Huston said.

Stephen Trzcinski, of Wilkes McHugh, was appellate counsel on the briefs, Huston said.

Appellate defense counsel for Jeanes Hospital included Post & Schell and Obermayer Rebmann Maxwell & Hippel, according to the Superior Court docket.

A spokeswoman for Jeanes Hospital did not respond to a request for comment.

Obamacare to Affect Nursing Homes, Too

Submitted by Amaris Elliott-Engel on Wed, 09/11/2013 - 10:05

(The Legal Intelligencer- second of two-part series on The Future of Long-Term Care Litigation)

While health care headlines focus on the implementation of Obamacare's individual mandate and establishment of insurance exchanges, the landmark legislation also is going to affect long-term care for older Americans.

Medicare- and Medicaid-certified nursing facilities must have had compliance and ethics programs in place by March, but regulations are still forthcoming.

Compliance programs for the health industry are not a new thing, said Susan V. Kayser, a partner with Duane Morris' New York office who chairs the long-term care and senior services subgroup of that firm's health law practice. The U.S. Department of Health and Human Services' Office of the Inspector General issued guidance in the 1990s for compliance programs on the basis of the federal sentencing guidelines, she said. New York is the first state to require Medicaid providers to have a compliance plan, she also added.

"I suspect that by and large, most nursing homes until earlier this year may not have had one," Kayser said. "And now they are required to have one."

Due to the fact the Centers for Medicare and Medicaid Services has not yet issued the regulations that would put the meat on the skeleton of the Affordable Care Act, "you have a legal requirement to have a compliance program with no real governing regulations," said consultant David Hoffman, whose firm works on compliance programs for nursing homes and is a former federal prosecutor who specialized in health care fraud and abuse.

To read the full report I wrote for The Legal Intelligencer: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202618827884&Obamacare_to...
 

Long-Term Care Litigation Sees Surge

Submitted by Amaris Elliott-Engel on Wed, 09/11/2013 - 09:53

The Legal Intelligencer

Amaris Elliott-Engel

(first of two-part series on The Future of Long-Term Care Litigation)

When Rhonda Hill Wilson started representing clients in the field of long-term care litigation, there was not a lot of interest in representing elder Pennsylvanians for the torts they might have been wronged by.

Damages were only thought of in an "economic sense," said Wilson, of the Law Offices of Rhonda Hill Wilson in Philadelphia, and the trial-lawyer bar was more interested in representing clients who were breadwinners.

But in recent years, the understanding has developed that "even a person who is elderly or aged has value in his or her life," Wilson said.

Plaintiffs and defense lawyers told The Legal that litigation against nursing homes and other facilities that provide care to older Pennsylvanians has ticked upward in the last decade, along with increased advertising by plaintiffs firms.

In 2010, 15.4 percent of Pennsylvanians were aged 65 or older, while 13 percent of all Americans were aged 65 or older, according to the last U.S. Census.

'FAVORABLE CLIMATE'

Lawyers prosecuting health professional liability actions traditionally sued doctors and hospitals, but those sort of lawsuits died down with tort reform, said William J. Mundy, a Harrisburg attorney who is co-chair of Burns White's health care and professional liability group and has a longtime practice focusing on long-term health care litigation.

To read the rest of the report I wrote for The Legal Intelligencer: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202618550735

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