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Successful Litigation Impacting Future Medicaid Payments

Stotler Hayes Group Attorney, Nathan Peters, presented at the Texas Healthcare Association’s Board of Directors meeting on August 21st, 2019. Nathan shared two updates on how Stotler Hayes Group’s (SHG) Texas-based attorneys are successfully fighting to recover every Medicaid dollar available for our clients, and all Texas providers. SHG attorneys have litigated two major issues with the Texas Health and Human Services Commission (THHSC) and both could significantly impact future Medicaid payments in Texas. The issues the cases have dealt with include (1) the THHSC’s denial of an application for failing to exclude inaccessible resources for incapacitated Medicaid Applicants and (2) THHSC’s improper restrictions on Incurred Medical Expenses (IME). By some estimates, the IME payments could alone boost Medicaid provider payments over $40 million annually.

Unlike some state Medicaid agencies, THHSC previously refusing to exclude certain resources when reviewing Medicaid applications for incapacitated individuals. This policy is leading to a significant loss in payments for providers, because affected providers are left without a payor source until the incapacitated resident can secure a guardian with the authority to spend down their resources. Unfortunately for these providers, securing a guardian and spending down resources for incapacitated individuals is often a lengthy and complicated process. However, SHG’s recent victory in the case of Tex. HHS Comm’n v. Marroney, 2019 Tex. App. LEXIS 4298, 2019 WL 2237885 (Tex. App. – Austin May 24, 2019, Pet. Denied) should lead the THHSC to change its policy and start excluding inaccessible resources for incapacitated residents.

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Overcoming Difficulties and Aging

We must realize that the comfort and well-being of an afflicted person can be improved even when a progressive disease process does exist. Environments can be adapted to allow for a measure of independence together with safety.

Instead of isolation, the person with a brain disease can be given the opportunity of continued social contact in a warm and friendly setting. I have personally seen women diagnosed with dementia, work confidently and competently in a kitchen provided for their use.

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Legionnaires’ Disease presents grave threat to U.S. healthcare facilities

CDC said 25 percent of cases in hospitals and long-term care settings resulted in deaths during 2015

Legionnaires’ Disease (LD) cases and outbreaks anywhere are alarming enough, but when they occur in healthcare settings, they can be downright deadly.

According to 2015 data from the Centers for Disease Control and Prevention (CDC), 25 percent of cases of LD, a serious lung infection caused by Legionella bacteria, acquired in hospitals or long-term care facilities were fatal. The fatality rate in the general population was 10 percent.



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Age-Grading and Aging

Society has an alternative method of classifying people by age. The distinctions are based on a person’s life situation, especially the place held in society, rather than on number of years since birth. Sociologists and anthropologists sometimes refer to this as an age-grading approach. It has been the most important basis of age distinction in many societies, and continues as a supplementary approach in industrialized nations today.

A simple age-grading approach divides the population into the young, the grown up, and the aged.

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Readiness Associates unveils new, streamlined version of emergency preparedness self-assessment survey

American College of Health Care Administrators membership invited to gauge their risk in the event of a disaster

By Bob Reinert, Marketing, Content and PR Director, Readiness Associates

Among its most important benefits, the new strategic partnership between the American College of Health Care Administrators (ACHCA) and Readiness Associates (RA) gives ACHCA members the opportunity to assess their own vulnerabilities to natural and man-caused disasters.

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Finding the Funny in Change

Comedians are masters at dealing with change. . .not only are we in a different city in front of a different industry every single week, but we get stuck in weirder change situations than most people could ever even think up! We’re not talking your run-of-the-mill change situations. . . Twice I’ve been introduced after they read off the list of people in the organization who died! GREAT idea for comedy! Oh, and I once had to perform for 600 people while standing on a pedestal as they sat around me. I basically had to spin and tell jokes. And then there was the time I rode a Lazy Susan as IT spun in and out of the room, so audience members could either hear the set-up or the punchline. . .but of course not both! How did I deal with these whacko change situations and millions of other ones in my 20+ years in this business? And more importantly, how can my on-the-job training in change translate to you and your situation at work? Well come on out to my keynote Finding the Funny in Change and find out! It will be funny and informative with practical tips that you can use immediately back at work to handle stressful change through using humor.

Many, many speakers will tell you that you need to use humor, but they don’t tell you HOW. I will. My 20+ years in the comedy writing business – writing for everyone from Jay Leno’s monologue on the Tonight Show to guests on the Jerry Springer Show (my parents are proud!) means I can show anyone how to use humor to their advantage. And when you’re dealing with change, you need all the advantages you can get. Think about it, you sit down to a staff meeting, and you’ve just had a big change (budget cuts, layoffs, no more free coffee – pick one). If you don’t talk about it, people are angry. If you do talk about it, people are, well, still angry. But how about talking about it with a little humor? It can work! And don’t worry, I’ll toss in a few “humor rules” so you don’t get yourself in trouble!

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In a World of Their Own and Aging

When a dying person senses that he is being abandoned and that others no longer feel he is worth their time and effort, he is likely to show very understandable mental and emotional reactions. He becomes demanding and agitated or more depressed. He thinks and talks in ways that may come across as peculiar to others.

For whenever patterns of communication deteriorate, it becomes increasingly difficult for an isolated person to speak logically. Unfortunately, reactions of this type often provoke responses that compound misery. Depressed because he feels abandoned, the terminally ill person may stop eating. Sensitive caregivers may recognize the psychosocial dynamics involved and increase their efforts to provide a sense of affection and security. Less sensitive people, however, may immediately resort to forced feeding through intravenous needles or gastrointestinal tubes. Or, they may decide the person is ready to die and let him go.

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Touch Deprivation and Aging

The following is a quote by the researcher, M. Schwab: “These early morning hours are terribly lonely…that’s when I have such a longing for someone who loves me to be there just to touch and hold me…and to talk to.”

Touch is the most important and neglected of our senses. An individual can survive without one or more of the other senses, but one cannot survive and live in any degree of comfort without the physical and emotional sense that touch is capable of offering.

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Compliance Program Deadline

Deadline Looming for Mandatory Nursing Home Compliance Programs

Skilled Nursing Facilities have until November 28, 2019 to adopt and implement a compliance program that meets the elements set out by the Center for Medicare and Medicaid Services (CMS). Beginning on that date, state survey agencies will start assessing nursing homes’ compliance programs as an additional condition of participation in Medicare and Medicaid. Issued in 2016 as part of CMS’s revised Part 483 of Title 42 (“Requirements for States and Long Term Care Facilities”), the CMS compliance program elements are functionally identical to those from the Office of Inspector General for Health and Human Services (OIG).1 Already the standard for effective compliance programs, the OIG elements are used to measure an organization’s culpability when federal fraud and abuse laws are violated. Specifically, the OIG considers “the existence of an effective compliance program that pre-dated any governmental investigation when addressing the appropriateness of administrative sanctions.”

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Therapeutic Touch and Aging

Western clinicians are beginning to embrace Eastern healing modalities more than ever, especially in regard to patients with unrelieved pain. According to Maureen Foye, an RN, employed at the in-patient pain management program at Spaulding Rehabilitation Hospital in Boston, “Many people don’t understand the role that Eastern healing can play in the management of pain.” Foye began working with patients in severe pain after being exposed to the principles of therapeutic touch. She has now come full circle by instructing other practitioners in the value of these principles with plans to conduct further research into the clinical effectiveness of energy healing and therapeutic touch associated with the field of pain management.

Many patients with chronic pain tend to isolate themselves. A major focus of the program is to therefore, create community among her patients.

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Ageism and Aging

Ageism and Aging are stereotyping and discriminating against individuals or groups on the basis of their age. The term was coined in 1971 by Robert Butler to describe discrimination against seniors, and patterned on sexism and racism. Butler defined “ageism” as a combination of three connected elements. They are prejudicial attitudes toward older people, old age, and the aging process. There are also other discriminatory practices against older people, such as institutional practices and policies that perpetuate stereotypes about older people.

Contrary to common and more obvious forms of stereotyping such as racism and sexism, ageism is more resistant to change. For instance, if a child believes in an ageist idea against the elderly with few people correcting him, then as a result, he will continue to grow into an adult believing in ageist ideas. In other words, ageism can become a self-fulfilling prophecy.

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QUALITY OF LIFE AND AGING

In almost every book or article on aging, one idea continues to be stressed: longevity is desirable if accompanied by a life of high quality. But, I continue to ask, what makes for such a good life? Most of us want love, meaningful work, safety and security, energy and health, and to varying degrees, power, fame, freedom and wealth, and we want to live in a society that supports these goals.

How can we measure quality of life? There is no simple answer. It is an amorphous concept, constantly changing with the historical period and one’s culture, personal background, stage of life, and socioeconomic status. A person’s definition of quality of life is and should be highly individualized and objective.

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CMS’ New Rule on Arbitration: A Win and A Loss

Earlier this month, the Center for Medicare and Medicaid Services (“CMS”) issued a final rule repealing its’ prior rule prohibiting long-term care providers (“LTC”) from entering into pre-dispute, binding arbitration agreements with their residents. This change takes effect September 16, 2019 and comes after years of protracted rule-making efforts, public comment, and litigation that began in October 2016 when CMS issued a final rule prohibiting the agreements in nursing facilities and ended up in the U.S. Supreme Court in May 2017.

This new final rule represents a win, albeit a limited one, for the long-term care industry. On one hand, the ability to pursue arbitration represents a real opportunity for facilities to reduce liability and minimize the costs of potential litigation with residents by eliminating discovery, attorneys’ fees, and other related litigation expenses. On the other hand, the final rule contains a number of provisions, intended to protect nursing home residents, which may cause providers concern as they evaluate the benefit of adding these provisions to their Admission Agreements.

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CMS Proposes One-Year Delay for Certain Phase 3 Skilled Nursing Requirements

Changes Made to Compliance and Ethics Programs and Quality Assurance and Performance Improvement Programs

On July 16, 2019, the Centers for Medicare & Medicaid Services (“CMS”) released a pre-publication copy of the revisions (“Proposed Rule”) to Part 483 to Title 42 of the Code of Federal Regulations the Requirements for States and Long-Term Care Facilities (“RoPs”). CMS stated that it identified a number of existing skilled nursing facility requirements that could reduce unnecessary burdens on facilities if they were simplified or eliminated.

The Proposed Rule would alter a over dozen sections of the RoPs, including: (1) resident rights; (2) admissions transfers and discharges; (3) quality of care; (4) nursing services; (5) behavioral health; (6) pharmacy services; (7) food and nutrition services; (8) facility assessments; (9) physical environment; (10) compliance and ethics programs; (11) Quality Assurance and Performance Improvement (“QAPI”) programs; and (12) infection control. The Proposed Rule also proposes to delay implementation to some of these Phase 3 provisions until one year following the effective date of the Proposed Rule.

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“DEMENTIA” As A Strategy And Aging

An old woman has been admitted to an institution with a probable diagnosis of dementia and uncommunicative. She doesn’t speak nor appear to understand. However, it soon becomes clear that she can speak and understand.

Silence is, however, her way of punishing the family whom she regards as insensitive to her needs. “They are all living in my house and they treat me like a poor relation. Boss me around all the time!”

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Sharing The Past And Aging

There can be much satisfaction in sharing with an elderly person his reflections on the past. Directly or indirectly, it is part of our history as well. Apart from the facts we could glean, it deepens our understanding of life’s experiences. Together with the old person, we feel the transformation from child to youth to adult and beyond.

In this way, an old person who opens his mind and feelings to us is a unique text on human development and aging.

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Hardiness/Frailty and Aging

The elderly are often less vulnerable than they appear. They may attribute their health to exercise, religion and a positive attitude. It is well known that genetics, good health practices and a certain degree of luck are involved. The very process of enduring beyond the average life span indicates personal survival capacities beyond those of the ordinary person.

In our era, however, this is complicated by the fact that many would have died of various disorders, having now been kept alive through sophisticated medical technology. Therefore, among the oldest-old we find two distinct groups: those hardy souls genetically meant to endure for a century, and the extreme frail who walk a “tightrope” between survival and death.

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Mobility/Falls and Aging

A resident in a facility where I was the Director of Nursing, claimed the reason he and his wife got married while in their late eighties, was the following,” It was a marriage of convenience. Rather than using a cane or a walker, we can lean on each other.”

Mobility is the capacity one has for movement. In infancy, it is a major mode of learning and interacting with the environment. Throughout life, it remains a significant means of contact, sensation, exploration, pleasure, and control. In old age one moves more slowly and purposefully, sometimes with more caution.

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Cruise or Nursing Home – You Decide

Social media is great for spreading humorous articles of all kinds, but there is a danger that some folks may take what is intended as humor and digest it as fact. A recent Facebook post by a fellow from Oklahoma was actually picked up by several news stations including at least one overseas. In it he details why it would be cheaper to live out his final years at a Holiday Inn rather than a nursing home. I’m sure that you may have also seen, at least once, a similar comparison to a cruise ship.

Can we dispense once and for all with the silly notion that living on a cruise ship or at the Holiday Inn is a viable alternative to being in a nursing home? While the premise might make for an amusing Facebook post, in reality, nothing could be further from the truth.

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Personality and Aging

The old person is largely responsible for his own place in society. What is experienced as rejection or exclusion by one person may be a welcome opportunity to shed responsibility by another. One individual’s lifestyle may keep him closely linked with society, while that of another individual may encourage an earlier withdrawal.

The reality of individual differences is well illustrated in several studies in the field of aging. As an example, researchers in their studies among men, have identified five types of personality.

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