July 22

Centers for Medicare and Medicaid Services to Test Concurrent Coverage of Hospice and Curative Care

Terminally ill patients no longer will have to give up curative treatment to receive Medicare-paid hospice care, under a limited new program the CMS will start testing with 140 hospice providers as early as January. The Medicare Care Choices Model, established by the Affordable Care Act, waives the requirement that terminally ill patients must end curative treatment such as chemotherapy to qualify for Medicare hospice coverage. The model, which will run through 2020, will test whether the expanded benefits will convince more patients to enter hospice and whether it improves care, enhances patient satisfaction, and reduces costs. Under the Medicare Care Choices Model, patients can continue to receive curative services such as physical therapy, prescriptions, medical equipment, physician services, and short-term hospital visits for pain or symptom management. Instead of getting a per diem payment, hospices will receive a Medicare monthly payment of $200 to $400 per patient for any hospice care that patients need. Meanwhile, other providers will continue to be able to bill Medicare for curative services. The program will launch in two phases with the first hospices entering in January and a second wave to begin in January 2018.

For the article from Modern Healthcare, click here.

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July 13

94-Year-Old Must Pay Alimony to Offset Ex-Spouse’s Nursing Home Costs

Nebraska’s highest court determines that a 94-year-old husband must pay alimony to his 95-year-old ex-wife in order to help offset her nursing home costs, even if doing so puts his income below the poverty level. Binder v. Binder (Neb., No. S-14-783, June 26, 2015).

Laura and Glen Binder married in 1982. It was a second marriage for both of them and they had no children together. Mr. Binder owned farmland and operated a fertilizer business. Ms. Binder did not work outside the home. In 2012, Ms. Binder moved into a nursing home. Her income did not cover the cost of care, so Mr. Binder contributed the remaining amount.

Mr. Binder filed for divorce from Ms. Binder when he was 94 years old and she was 95 years old. The court dissolved the marriage and awarded Ms. Binder alimony in order to offset her nursing home costs. Mr. Binder appealed, arguing that the amount of alimony was presumptively an abuse of discretion because it drove his income below the poverty level in violation of state child support guidelines.

The Nebraska Supreme Court affirms, holding that the state child support law does not apply because the Binders do not have any minor children. The court concludes that the alimony award is not unreasonable because Mr. Binder has the power to dispose of farmland.

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June 25

Guardianship Funds Must Go to Estate to Reimburse Medicaid Claim

New York’s highest court rules that the funds in a deceased nursing home resident’s guardianship account must pass to the resident’s estate to pay a Medicaid claim instead of being used to reimburse the nursing home that had a claim against the guardianship account. Shannon v. Westchester County Dept. of Social Servs. (N.Y., No. 80, June 10, 2015).

Eastchester Rehabilitation & Health Care Center applied for a guardian for resident Edna Shannon and also applied for Medicaid on her behalf. The court appointed a guardian, and the state granted Ms. Shannon Medicaid benefits. The nursing home filed a claim with the guardian for services provided Ms. Shannon that were not covered by Medicaid. The court approved the sale of Ms. Shannon’s home, and the money went into the guardianship account.

After Ms. Shannon died, the state filed a claim against her estate for reimbursement of Medicaid expenses. The nursing home argued its claim accrued before the state’s claim because the state did not have a lien against Ms. Shannon’s home. The state argued that it was a preferred creditor, and the trial court agreed. The nursing home appealed, and the appeals court reversed, holding that the nursing home is entitled to reimbursement from the guardianship account before any funds pass to the estate. The state appealed.

The New York Court of Appeals, the state’s top court, reverses, holding that all money from the guardianship account must pass to the estate. The court concludes that state law permits a guardianship account to retain only property needed to satisfy the administrative costs of the guardianship, not to pay a claim against the incapacitated person that arose before that person’s death.

For the full text of this decision, go to: https://www.nycourts.gov/ctapps/Decisions/2015/Jun15/80opn15-Decision.pdf

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June 22

Medicaid Applicant Can Appeal Decision that Has Not Yet Been Enforced

An Ohio appeals court rules that a trial court improperly dismissed an appeal by a Medicaid applicant for lack of justiciability because the decision had not been enforced yet. Stolzenburg v. Ohio Dept. of Job & Family Servs. (Ohio Ct. App., 3rd Dist., No. 2-15-01, June 8, 2015).

Nursing home resident Larry Stolzenburg applied for Medicaid benefits. The Medicaid agency found that Mr. Stolzenburg had made an improper transfer and imposed a penalty period. Mr. Stolzenburg appealed the decision to the Ohio Department of Job and Family Services (ODJFS), and after a hearing, the ODJFS affirmed the decision.

Mr. Stolzenburg appealed the ODJFS’s decision to court (Mr. Stolzenburg died while the case was pending and his executor was substituted). The trial court dismissed the appeal for lack of justiciability, holding that ODJFS’s decision does not adversely affect Mr. Stolzenburg until the Ohio Department of Medicaid (ODM) takes action to enforce the state’s decision. The estate appealed.

The Ohio Court of Appeals reverses, holding that the case is justiciable. According to the court, “the possibility that parties might settle a case following a court’s judgment or that a prevailing party might not enforce a court’s judgment do not affect justiciability and the court’s ability to enter judgment in the first place.  Applying the common pleas court’s reasoning, no case would be justiciable . . . “

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2015/2015-Ohio-2212.pdf

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June 18

State Can Impose Second Penalty Period on Same Transfers of Assets

A Massachusetts appeals court rules that the state may impose a second penalty period based on the same transfers of assets after one of the transfers was cured and the applicant reapplied for benefits before the first penalty period was over. Burt v. Director of the Office of Medicaid (Mass. Ct. App., No. 13-P-1853, May 29, 2015).

Catherine Harrington made two separate transfers of assets—one for $45,000 and one for $134,834. She applied for Medicaid benefits in December 2006. Based on the transfers, the state imposed a penalty period until December 2008. More than 60 days after Ms. Harrington was notified about the penalty period, her niece returned the $45,000 transfer. In June 2008, Ms. Harrington filed a second application for benefits. The state imposed a new penalty period, running from March 2008 until July 2009, for the $134,834 transfer that occurred before the first application.

Ms. Harrington appealed, arguing that her penalty period should have begun in December 2006 and that it was impermissible for the state to impose a new penalty period for the same transfer she was already penalized for. Under Massachusetts regulations, because the transfer was cured more than 60 days after the notice about the penalty period, Ms. Harrington had to reapply for benefits. The state argued its regulation requires it to review a new application in its entirety and make a new determination about when the applicant is “otherwise eligible.” The trial court affirmed the state’s decision, and Ms. Harrington appealed.

The Massachusetts Court of Appeals affirms, holding that the state’s imposition of the second penalty period does not violate state or federal law. According to the court, “nothing in the plain language of the regulations requires that the start date for the recalculated penalty period be the same day that the prior penalty period began.” The court rules that an applicant does not become “otherwise eligible” at a time when nursing home services are being paid for and that Ms. Harrington was paying for services until March 2008.

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