By Bill Chappell on NPR.org

After thousands of U.S. veterans won a class action suit against the military over being used in chemical and biological testing, the Army says it will pay for their medical care. But the group’s attorneys say the service is falling short of meeting its obligations and that it’s withholding details veterans are seeking about what agents they were exposed to.

The Army says veterans can be treated for any injuries or diseases caused after the service used the soldiers as research subjects in the period from 1942 to 1975.

Notification letters went out to known class members on Nov. 1, the service says.

As for the size of the response, MEDCOM Public Affairs Chief Maria L. Tolleson said via email, “Two applications are in process and we have had about 40 more people call in who intend to apply.”

As for how to apply for treatment or coverage through the program, the Army says its Medical Command is conducting “an exhaustive search” for veterans who may have been research subjects “so that no individual who may benefit from medical care is inadvertently omitted.”

The lawsuit dates to 2009. It was filed by the Vietnam Veterans of America and other plaintiffs who wanted to know which chemical agents they had been exposed to — and whether those agents might have caused health problems. A court decided in the plaintiffs’ favor in early 2016.

While the Army has sent letters to at least some of the plaintiffs, it hasn’t issued broad notifications, as required by court documents.

The Army says it sent notification letters to known class-action members on Nov. 1.

As for the size of the response, “Two applications are in process and we have had about 40 more people call in who intend to apply,” MEDCOM Public Affairs Chief Maria Tolleson said via email.

Tolleson said the Army is using traditional media and mailings to reach veterans who might be eligible, saying, We understand that our target group ranges in ages from mid-60s to late-80s and are likely not very active on social media.”

But while those communications inform veterans that they’re eligible for medical care, they’re not answering veterans’ questions about which specific agents they were exposed to.

The service tested more than 100 “biological and chemical warfare/threat agents and substances that mimicked these agents (simulants), as well as medications, vaccines, and other chemical and biological agent countermeasures,” according to Tolleson.

“The Army still has not provided notice to test subject veterans regarding the specific chemical and biological tests to which they were subjected — and their possible health effects,” says attorney Ben Patterson of the law firm Morrison and Foerster, which represents veterans in the case. Patterson says a court ordered the Army to disclose detailed information to the former soldiers four years ago, in an injunction from November 2013.

Patterson said the Army is imposing unnecessary hurdles in the process, “in an apparent attempt to discourage and prevent veterans from applying to the program and receiving the medical care to which they are entitled under the Army’s own regulation.”

As part of the class action lawsuit’s resolution, the Army is required to use a variety of means to contact former test subjects, from notification letters and a “publicly accessible website” to public notifications and social media accounts. The service has posted its plan to uphold its obligation on the Army Medicine military website. But there’s no mention of the plan on several social media accounts, including the official Army Medicine Twitter feed.

“The law firm representing the veterans estimates at least 70,000 troops were used in the testing, including World War II veterans exposed to mustard gas,” NPR reported in 2015, in a follow-up to our reporting on WWII vets.

As for who’s eligible for coverage, the Army lists these requirements:

A DD Form 214 or War Department (WD) discharge/separation form(s) or functional equivalent.
Served as a research subject in a U.S. Army chemical or biological substance testing program, including the receipt of medications or vaccines under the U.S. Army investigational drug review.
Have a diagnosed medical condition that you believe to be a direct result of your participation in U.S. Army chemical or biological substance testing.

One veteran, Frank Rochelle, was injected in 1968 with a drug that made him hallucinate for nearly two days. He knows its identity only by its code name — CAR 302668.

“We were assured that everything that went on inside the clinic, we were going to be under 100 percent observation; they were going to do nothing to harm us,” Rochelle told NPR in 2015. “And also we were sure that we would be taken care of afterwards if anything happened. Instead we were left to hang out to dry.”

Last month, Rochelle received a letter from the Army — but instead of a detailed account of his medical history, it was a form letter, telling him that if he had volunteered to receive “medications or vaccines,” he might be eligible for medical care.

The military said it ended chemical and biological testing in 1975 after its chief of medical research admitted in a congressional hearing that his office didn’t have any way to monitor research subjects’ health after the tests were conducted.

In its FAQ about the treatment program, the Army also addressed the medical concerns of veterans who have served in more recent decades.

To the following question:

“I believe I have a disease or medical condition as a result of Army chemical or biological substance testing at FT McClellan (or other Army installations) during the 1980s (or 1990s), can I apply for medical care benefits under this medical care injunction?”

The military replies:

“No. This program is only available to former members of the Armed Forces who have an injury or disease resulting from their participation in a U.S. Army chemical or biological substance testing program.”

NPR Librarian Barbara Van Woerkom contributed to this report.

A New Jersey trial court grants summary judgment to a nursing home resident’s agent under a power of attorney in a lawsuit by the nursing home for payment of the resident’s unpaid bill and orders that the nursing home pay attorney’s fees and costs. Hampton Ridge Healthcare & Rehabilitation Center v. Wright (N.J. Super. Ct., No. L-2335-16, Nov. 1, 2017).

Charles Douglas was an agent under a power of attorney for his aunt, Idella Wright. Ms. Wright entered a nursing home, and Mr. Douglas signed the admission agreement as the responsible party. Mr. Douglas assigned Ms. Wright’s Social Security payments to the nursing home, but Ms. Wright died owing $18,322 to the nursing home.

The nursing home sued Mr. Douglas for failing to timely apply for Medicaid benefits and to pay the final bill. Mr. Douglas filed a motion for summary judgment, arguing that he was not personally liable because New Jersey law prohibits a nursing home from requiring a third-party guarantee as a condition of admission. The trial court granted Mr. Douglas summary judgment and he filed a motion for attorney’s fees.

The New Jersey Superior court orders that the nursing home pay attorney’s fees and costs. The court holds that the claim Mr. Douglas was forced to defend against was brought “in contravention” of the “clear and unambiguous statutory language” insulating third parties from personal financial liability.

For the full text of this decision, go to: https://vanarellilaw.com/wp-content/uploads/2017/11/Hampton-Ridge-Healthcare-Rehabilitation-Center-v.-Douglas.pdf

An Ohio appeals court rules that a nursing home that is suing a resident’s agent for breach of contract is entitled to damages if the agent had control of liquid assets at the time the nursing home invoice came due even though the assets were paid to maintain the resident’s home. Classic Healthcare Systems, LLC v. Miracle (Ohio Ct. App., 12th Dist., No. CA2017-03-029, Nov. 13, 2017).

David Miracle was his mother’s agent under a power of attorney. When his mother entered a nursing home, he signed the admission agreement on her behalf and agreed to use his mother’s finances to pay the facility. Mr. Miracle paid the nursing home infrequently, and his mother owed more than $100,000 by the time she was discharged.

The nursing home sued Mr. Miracle for breach of contract. Evidence showed that Mr. Miracle used $56,486.63 of his mother’s resources to maintain her real estate and spent an additional $12,971.54 on payments not related to his mother. The trial court found that the additional payments were unauthorized and awarded the nursing home damages in that amount. The nursing home appealed, arguing that it was entitled to the money that was used to maintain Mr. Miracle’s mother’s home.

The Ohio Court of Appeals, 12th District, reverses and remands, holding that the nursing home is entitled to damages for breach of contract if Mr. Miracle “had control over liquid assets at the time an invoice came due.” The court rules that the trial court improperly looked at the entire nursing home stay as one transaction. According to the court, if Mr. Miracle “had control of [his mother’s] liquid assets on the due date that were not paid to [the nursing home] then that amount is damages properly payable to [the nursing home].”

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2017/2017-Ohio-8540.pdf

By Michelle Andrews via National Public Radio

If you’re poor, uninsured and have a bad car wreck or fall seriously ill, there’s a chance in most states to enroll for Medicaid after the fact. If you qualify for Medicaid, the program will pay your medical bills going back three months.

This “retroactive eligibility” provides financial protection as patients await approval of their Medicaid applications. It protects hospitals, too, from having to absorb the costs of caring for these patients.

But a growing number of states are rescinding this benefit. On Nov. 1, Iowa joined three states that have eliminated retroactive coverage for some groups of Medicaid patients since the Affordable Care Act passed.

Each state had to secure approval by the federal government to make the change.

Retroactive eligibility has been a feature of Medicaid for decades, reflecting the program’s emphasis on providing a safety net for poor, disabled and other vulnerable people. In contrast to private insurance, determining Medicaid eligibility can be complex and the application process daunting, advocates say. A patient’s medical condition also may keep families from applying promptly for coverage.

All four states — New Hampshire, Indiana and Arkansas, in addition to Iowa — have expanded Medicaid under the federal health law, which allowed states to include in their Medicaid program adults with incomes up to 138 percent of the federal poverty level, or about $16,000 for one person.

In theory, most adults are required to have insurance under the ACA. In practice, each state still has a significant number of uninsured, ranging from 5 to 8 percent of the population.

The retroactive coverage “can compensate for the sorts of errors and lapses that can so easily occur on the part of both the applicant and the government bureaucracy” that delay applications, said Gordon Bonnyman, staff attorney at the Tennessee Justice Center, a public interest law firm that represents low-income and uninsured residents.

State and federal officials say eliminating the retroactive coverage helps encourage people to sign up for and maintain coverage when they’re healthy rather than waiting until they’re sick to enroll.

It also fits into federal officials’ efforts to make Medicaid, the federal-state program that provides health care for low-income adults and children, more like private insurance.

But consumer advocates and health care providers say the shift will saddle patients with hefty medical bills and mean hospitals will be picking up the cost of more uncompensated care when patients can’t pay.

Some worry this could be the start of a trend.

In Iowa, the change applies to just about anyone coming into Medicaid — except for pregnant women and children who are younger than a year old. The change will affect up to 40,000 residents annually and save the program more than $36 million a year.

“We’re making it a lot more likely that Medicaid-eligible members are going to incur significant medical debt,” said Mary Nelle Trefz, health policy associate at the Child & Family Policy Center in Des Moines, whose organization opposed the change.

Patients who are undergoing treatment for severe health conditions may neglect to apply immediately for Medicaid; that could leave them financially responsible for days or months of care they received before they submitted their application, even though they may have been eligible for Medicaid all along.

That’s not the only issue, advocates say. Unlike the commercial insurance market where re-enrollment through someone’s employer is routine, Medicaid requires that beneficiaries’ eligibility be reassessed every year.

“People fall through the cracks,” said Andrea Callow, associate director of Medicaid initiatives at Families USA, a consumer advocacy group.

In addition, complications can arise for people who might need Medicaid coverage for long-term care services.

Others argue that a 90-day retroactive eligibility guarantee is counterproductive. “We’re trying to get people to behave more responsibly, not less responsibly,” says Gail Wilensky, an economist who oversaw the Medicaid and Medicare programs in the early 1990s under President George H.W. Bush. “That is not the signal you’re sending” with three months of retroactive eligibility. A 30-day time frame is more reasonable, Wilensky says.

In contrast to the Iowa waiver, the ones in Arkansas, Indiana and New Hamsphire generally apply only to adults who gained coverage under the law’s Medicaid expansion. (Indiana’s waiver also applies to other groups.)

Kentucky has a request pending that, like Iowa’s, would eliminate retroactive Medicaid eligibility except for pregnant women and infants younger than age 1.

Under federal law, officials are permitted to waive some Medicaid coverage rules to give states flexibility to experiment with different approaches to providing services. And retroactive eligibility waivers in Medicaid are hardly new. A few states like Tennessee have had them in place for years.

Tennessee officials eliminated retroactive eligibility for all Medicaid beneficiaries in 1994 when the state significantly expanded coverage under TennCare, as Medicaid is known there. At the time, the state even allowed uninsured people to buy into the program who wouldn’t otherwise qualify based on income, says Bonnyman.

“There was no reason for anybody to be uninsured except undocumented immigrants,” says Bonnyman. “It didn’t seem to have the potential for harm.”

But state officials revamped that program after serious financial problems. Eligibility for TennCare has become more restrictive again.

Other states that waived retroactive coverage for at least some Medicaid groups include Delaware, Maryland, Massachusetts and Utah.

Bonnyman says his group frequently works with Medicaid beneficiaries who have medical bills they can’t afford that accumulated during the months before they applied for Medicaid.

“If you’re a moderate- to low-income working family,” he says, “one or two days in the hospital is enough to ruin you financially.”

By Paige Winfield Cunningham in The Washington Post

The government will give states broader leeway in running their Medicaid programs and allow them to impose work requirements on enrollees, a top federal health official said Tuesday in outlining how the Trump administration plans to put its mark on the insurance program for low-income Americans.

Seema Verma, who heads the Health and Human Services Department’s Centers for Medicare and Medicaid Services, did not spare criticisms of the Obama administration and called its opposition to work requirements “soft bigotry.”

“Believing that community engagement requirements do not support the objectives of Medicaid is a tragic example of the soft bigotry of low expectations consistently espoused by the prior administration,” Verma said in a sweeping address to the National Association of Medicaid Directors. “Those days are over.”

The speech was Verma’s most detailed public explanation of how she plans to approach Medicaid in a highly politicized era in which Republicans still hope to roll back its expansion under the Affordable Care Act as well as enact future spending cuts through their various health-care bills.

The program’s chief problems, according to Verma, include the expansion to add able-bodied adults and overall costs, which now comprise 29 percent of total state spending. She also faulted the federal government for requiring too much reporting from states and for delaying approval of states’ waiver requests to run their programs in alternative ways.

Multiple times throughout her half-hour speech, she used the phrase “card without care” to make her point that simply enrolling people in Medicaid isn’t effective if they can’t find a doctor who will accept them — an ongoing problem with the program because its reimbursements are lower than for Medicare or private coverage.

“We fail to live up to that promise when Medicaid merely provides a card without care,” she said. “And that’s why we’re ushering in a new era for Medicaid at CMS.”

Verma stressed that she and President Trump are “deeply committed” to the program, while accusing the prior administration of quashing state innovation and undermining Medicaid’s traditional partnership between the federal and state governments.

She listed a number of ways that CMS will change its approach, by expediting state waiver requests that mirror past approvals, allowing some waivers for up to a decade and starting a “report card” that grades state programs.

Waivers are a major way the Trump administration can reshape Medicaid. A half-dozen states have applied or soon will apply to require program enrollees to get a job or do some kind of community volunteering as a condition of their coverage.

Verma has long supported such requirements, which the Obama administration uniformly rejected, but Tuesday was the first time she explicitly promised that her agency would approve this type of waiver request.

“The thought that a program designed for our most vulnerable citizens should be used as a vehicle to serve working-age, able-bodied adults does not make sense,” she said.

Some officials from states currently asking to implement work or community engagement requirements were pleased at Verma’s declaration of support, including Kentucky Medicaid commissioner Stephen Miller.

“You heard what was said today, and we’re right in sync with that,” Miller said. He said he’s expecting notification “soon” from CMS that Kentucky’s waiver request has been approved. The state is hoping to set its new requirements in motion starting the middle of 2018.

But New York Medicaid director Jason Helgerson said it was “completely reprehensible” for Verma to use the phrase “soft bigotry” to describe Medicaid programs that don’t impose extra requirements on low-income people seeking coverage.

“Where should I start? Helgerson said, when asked to respond to Verma’s address. “Shocked, appalled would be the two primary reactions I have.”