August 20

Medicaid Applicant with Care Agreement Assessed Transfer Penalty Because Rate Was Too High

A New Jersey appeals court rules that the state properly disregarded a Medicaid applicant’s care agreement and assessed a transfer penalty because the rate charged under the agreement was too high and the applicant did not provide enough details about the services provided in order to calculate their value. E.A. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-2669-13T3, July 20, 2015).

E.A. lived with her daughter, B.C., from 2004 until 2012. In 2006, they entered into a care agreement in which E.A. agreed to pay B.C. a monthly fee for care. The fee was based on the amount charged by a private home health care company. B.C. occasionally made larger withdrawals than the contract called for and did not keep records of the services provided. In 2012, E.A. entered a nursing home and applied for Medicaid. The state ignored the care agreement and found that B.C. had transferred a total of $244,510 to B.C. and imposed a 936-day penalty period.

E.A. appealed, arguing that the state should not have disregarded the care agreement and that the state did not calculate the worth of B.C.’s services. After a hearing, the administrative law judge ruled the penalty period was appropriate, and E.A. appealed to court.

The New Jersey Superior Court, Appellate Division, affirms the state’s decision, holding that the state properly disregarded the care agreement. According to the court, B.C. and E.A. did not comply with the agreement when B.C. made additional withdrawals, and B.C. was not entitled to the rate charged by the private home health agency because she did not provide the same full-time services as the agency. In addition, the court rules that E.A. did not provide enough details of the types of services actually provided under the care agreement for the state to calculate the value of her services.

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August 17

No Medicaid Undue Hardship Exemption for Transfer to Disabled Veteran

A federal district court rules that nothing in federal law requires the state to disregard a transfer of a life estate by a Medicaid applicant to a disabled veteran, so the applicant’s federal claims are dismissed. Pike ex rel. Estate of Pike v. Sebelius (D. R.I., No. CA 13-392 S, July 16, 2015).

F. Norris Pike’s mother transferred two life estates to her granddaughter, a disabled veteran. Later Mr. Pile’s mother was admitted to a Rhode Island nursing home and applied for Medicaid benefits. The state assessed a penalty period because of the transfers and denied Mr. Pike’s appeal.

Mr. Pike filed suit in federal court, claiming that the state should have applied the Medicaid undue hardship exemption to the transfers because the granddaughter is a disabled veteran. The state filed a motion to dismiss.

The U.S. District Court, District of Rhode Island, dismisses the federal claims. According to the court, there is nothing in federal law that requires a hardship exemption for a transfer to a disabled veteran, so Mr. Pike did not state a federal claim.   

For the full text of this decision, go to: https://scholar.google.com/scholar_case?case=7452280974869396478&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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August 15

Agency-Created Rules on Medicare Home Health Services Appeals Are Binding on Agency

Medicare home health services are available for individuals who are “confined to the home.” Medicare pays for these services through contractors known as “Medicare Administrative Contractors” (MACs). A group of individuals filed suit against the Secretary of Health and Human Services alleging the Secretary does not follow its own agency regulations governing appeals of Medicare home health services, which has resulted in improper denial of plaintiffs’ benefits. Although administrative law judges found the plaintiffs to be homebound, the contractors repeatedly denied subsequent claims for services, which plaintiffs contend is in violation of Medicare regulations. The Secretary filed this Motion to Dismiss, which was denied.

The district court held the plaintiffs, who are eligible for both Medicare and Medicaid, have standing to sue even though, as the Secretary asserted, Medicaid would likely pay their claims if they were to be denied Medicare coverage. Plaintiffs are seeking a right to Medicare coverage, and an improper denial of benefits could impose personal liability for uncovered services. Moreover, should Medicaid be forced to pay, one of the plaintiffs would be exposed to estate recovery. In addition, there are differences in the home health services provided between Medicare and Medicaid. Plaintiffs have shown a concrete injury sufficient to support standing. As for jurisdiction, although the court agreed with the Secretary that it does not have mandamus or federal question jurisdiction, the matter is properly before the court under the appeals provision of the Social Security Act found in §405(g). Lastly, the court disagreed with the Secretary’s contention that plaintiffs cannot file a claim for failure to follow interpretive rules related to MACs that do not bind the agency. The court said that it is long settled that rules promulgated by an agency that affect the rights of others are binding on the agency. The regulations governing MACs and Medicare appeals are couched in mandatory language, which, according to the court, shows the agency’s intent to be bound by these regulations.


Ryan v. Burwell, 2015 WL 4545806 (D. Vt. July 27, 2015)

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July 27

Associated Press Publishes State-by-State Analysis of Medicaid Expansion Statistics

AP has published a series of reports examining the success of state efforts to expand Medicaid coverage and the financial repercussions. Related stories show projected and actual enrollment figures for the newly eligible Medicaid population in the 30 states and the District of Columbia that have opted to expand the program under the federal Affordable Care Act.

For the article from Kaiser Health News, click here.

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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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