Elderly consumers are increasingly being victimized by insurance companies selling private fee-for-service Medicare plans, according to Robert Pear of the New York Times. In 1997, Congress set up private Medicare plans -- so-called “Medicare Advantage Plans” -- allowing seniors to replace traditional Medicare health coverage with enrollment in a fee-for-service health insurance plan. Insurance companies are milking these plans for all they are worth, with aggressive marketing. Almost one-fifth of the 43 million Medicare beneficiaries are in some type of private plan, and they are the fastest growing segment of the private Medicare plans.

But some of these seniors who wind up in private plans didn’t even sign up for the plan. Take the case of Bobbie Whatley, pictured here. Wellcare insurance company sent an agent to her doorstep in Columbus, Georgia last November. When she declined to buy the private insurance, the Wellcare agent, forged her signature and a month later she received mail thanking her for joining the plan. As Bobbie says, “It turned into a nightmare... I have all my mental faculties. If I let somebody like this come into my home and take advantage of me, then I am really concerned about older people who are more debilitated and not able to take care of themselves.”

Agents pushing the private Medicare plans sign up unwilling or unwitting seniors, who are not exactly sure what they have bought. Some think that they have just bought prescription drug coverage. Insurance agents often do not explain to elderly consumers that these private plans have hefty co-pays that traditional Medicare does not charge - such as $100 a day co-pays for nursing home stays and hundreds, or even thousands of dollars in co-pays for prescription medications.

Seniors also aren’t told that their doctors or hospitals may not accept these private plans in place of Medicare.

One state insurance commissioner who fields complaints about these private Medicare plans says that the problem is that the law does not require insurers to make disclosures to consumers about the increased costs associated with these plans. “This is a prime example of what happens when the federal government passes a law without proper safeguards,” says Mr. Dale, Mississippi Insurance Commissioner.

To add insult to injury, Congress actually pays these private plans huge subsidies, paying 19% more on average per senior. Is it any wonder that the Medicare trust fund is projected to go broke by 2041??

Wellcare Insurance Company denies it authorizes improper sales tactics, but the Centers for Medicare and Medicaid Services says that Wellcare’s oversight of unscrupulous sales agents is “inadequate and unacceptable.” CMS vows to “step up supervision of private plans.”

You have to wonder if CMS is up to the job. CMS has been operating with only an acting director since October 2006. CMS is the same agency that is in charge of oversight of nursing homes. As described in yesterday’s Elder Advocacy Blog entry, the General Accountability Office has just issued a stinging critique of CMS’ oversight of nursing homes.

It’s a safe bet that the insurance companies don’t have much to fear from CMS. If CMS won’t act, Congress must. It’s time for Congress to pass mandatory disclosures for private Medicare policies and to stop providing subsidies to these insurance companies for these plans.

To read Robert Pear’s excellent article, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

The U.S. General Accountability Office recently filed a report where it reviewed federal oversight of a group of 63 nursing homes nationwide that have a history of repeatedly harming nursing home residents. In 1998 and 1999, GAO had issued reports reviewing the oversight exercised by the Centers for Medicare & Medicaid Services (CMS) over nursing homes. Those reports found that sanctions CMS imposed on bad nursing homes often did not take effect, because CMS had adopted a policy of giving nursing homes a “grace period” to correct deficiencies before sanctions would be imposed. The prior reports found a “yo-yo” pattern where the nursing homes would cycle into compliance just long enough to avoid the sanctions, and then revert to a pattern of serious violations - avoiding sanctions while continuing to harm residents.

In response to the GAO reports, CMS was supposed to adopt an “immediate sanctions” policy for nursing homes found to repeatedly harm residents. Did they? According to the current GAO report, the answer is “no.” The CMS “immediate sanctions” policy is in name only. More than half of the 63 homes that had serious violations that had harmed residents as of 1999 continued to have serious violations during 2000-2005.

GAO attributes the continuing yo-yo effect to CMS' lax enforcement policies, including failure to impose fines, delaying imposing fines, and levying fines in such small amounts that it is more profitable for the nursing homes to pay the fines (which averaged $350 to $500 per day) than it is for them to provide good care to nursing home residents. An example is:

“A significant medication error occurred when resident #8 was administered the wrong medication over a three day period. The resident experienced hypoglycemia and required hospitalization. Upon return from the hospital there was evidence of actual harm: a decline in the resident’s ability to perform activities of daily living.” The fine for this citation could have been anywhere from $1,000 to $10,000. CMS only fined the home $1,500.

GAO says that CMS terminated from Medicare or Medicaid reimbursement only 2 of the 63 bad homes. What incentive would a nursing home have to do things differently? These bad nursing homes are actually being paid by Medicare or Medicaid to provide the very care that CMS has determined merits a citation. The nursing homes can actually pay the fines with the money that they are receiving from Medicare for the resident’s care.

As long as the federal government makes it cheaper for nursing homes to violate the law than it is to comply, elderly residents will continue to be neglected by nursing homes. For the big corporations that own the nursing homes, it’s just more cost-effective to neglect the residents and pay the paltry fine if they get caught.

And, if you’d like to know the names of the 63 “repeat offender” “yo-yo" nursing homes studied in the GAO report, you’re out of luck: GAO won’t disclose their names. You or your parents could be living in one of these homes (which were in Texas, California, Michigan and Pennsylvania).

To read the GAO report, click here.

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Felicia Curran
www.ElderAdvocacyLaw.com

Sen. John Edwards recently spent a day at a nursing home, working with a certified nursing assistant, taking up a call made by Service Employees International Union members, to "walk a day in my shoes."

Edwards' day with Elaine Ellis began at a 3 a.m. early morning breakfast and continued with rounds at the nursing home where Elaine works. Edwards helped nursing home residents dress, helped serve meals, and helped out a nursing home resident who needed a shave.

She said that he seemed like a very nice person and she felt grateful that he took the time to find out what her world is like. He said that she seemed like a caring person and that she treated the home residents like family.

Elaine actually works two jobs, from 7 a.m. to 3 p.m. at one nursing home, and then from 3:30 p.m. to 9 another nursing home. When Edwards left, Elaine went to work at her second job.

She works two jobs because she does not make enough from her first job to support herself.

You have to wonder how she could possibly be doing a good job for the residents at either home, given how exhausted she must be. She's been doing this routine for more than 17 years.

Edwards was not there to critique her or the nursing home, however. He was there to watch and learn. Let's face it: neither the nursing home or the union would have let him in the door if there was any chance of that happening! At another time, Edwards needs to address the issues of understaffing, poor training, and low wages at nursing homes if this visit is to be more than a photo-op.

SEIU represents nursing assistants and some licensed nurses at the few nursing homes that are unionized. SEIU has invited all candidates for president, Democrats and Republicans, to experience firsthand what the employees' lives are like by spending a day with an employee.
Sen. Clinton, Sen. Dodd, Gov. Richardson, and Sen. Biden have all accepted the invitation. None of the Republican candidates have responded.

For more on the Walk in My Shoes Challenge, check out the SEIU website.

Click here to watch a short video clip from Edwards' day with Elaine.




Felicia Curran
www.ElderAdvocacyLaw.com

“This event has now become the benchmark event for the Elder Abuse Prevention community and is quite successful in its own right.” Rodney Low - Program Developer, State Bar of California

This multidisclinary conference brings together a diverse group of professionals with a program that includes a general session led by Lisa Nerenberg, a nationally recognized elder abuse prevention advocate;
a keynote address at Monday's luncheon by psychiatrist Bennett Blum, M.D., widely acclaimed expert on undue influence; a Tuesday luncheon presentation by Lisa Gibbs, M.D., on the topic of forensic markers in elder abuse; and five workshop sessions with a total of 31 workshops.

1.5 hour workshops will center around the following subject matter:

Elder Abuse Litigation Skills
Physical and Financial Elder Abuse
Fraud - including Real Estate and Mass Marketing Fraud
Restitution and Asset Recovery
Undue Influence and Capacity

Sponsored by Legal Assistance for Seniors of Alameda County. Go to their website for a program brochure.

Online Registration closed, but space is still available! Call the Conference at (510) 832-3040: $300 for nonprofit/government; $400 for corporate/private bar

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Felicia Curran
www.ElderAdvocacyLaw.com

File this under “IF YOU’RE NOT OUTRAGED, YOU’RE NOT PAYING ATTENTION.” The Foundation for Taxpayer and Consumer Rights, a consumer watchdog group, made public last week internal memos and secret agreements between the Service Employees International Union (SEIU) and large nursing home chains in California. These contracts were supposedly signed in 2004 and are still in effect. Under the contracts, nursing home workers lost the right to strike and to complain to regulators about quality of care problems in exchange for wage increases. Nursing home operators got the unions’ agreement to lobby for more Medicaid dollars, for measures limiting nursing home residents’ legal rights (aka "tort reform"), and to refrain from seeking safe staffing requirements.

Instead of providing the residents living in their nursing homes good care, the home operators would rather buy the silence of their employees. They would rather restrict the laws that protect elders' ability to sue nursing homes for abuse and neglect. How outrageous is that? The contracts say that union officials are forbidden from publicizing or discussing the contracts.

As FTCR President Jamie Court said, “Nursing homes are a sector where care givers are the eyes, the ears, and the witnesses when there is abuse. To tie their hands and to tie their tongues is to let people die. That’s immoral and a terrible thing for a nursing home worker to have to live with.”

Besides the SEIU International, the contracts state that Locals 250 (Oakland), 434B (Los Angeles), and 2028 (San Diego) are parties to the agreement, along with the following nursing home chains in California:

Beverly Enterprises California, Inc.
Compass Health, Inc.
Country Villa Health Services
Covenant Care
Evergreen Healthcare LLC
Golden State Healthcare
Horizon West Inc.
Independent Quality Care
Kindred Healthcare, Inc.
Longwood
GranCare, LLC aka Mariner Healthcare Inc.
Meritcare Inc.
Ocadian Hospitals & Care Center4s
Pleasantcare
Sun Mar Healthcare
Sunbridge Healthcare Corporation
The Chase Group
Skilled Healthcare, LLC


The “gag” provision of the contract provides that the union will not use “voluntary adverse reporting to any regulatory or other oversight agency having jurisdiction over operations; provided, however, that this provision shall not apply to any employee mandatory reporting of suspected abuse or neglect which shall continue to be reported consistent with the requirements of California law.”

Nursing home employees are mandated reporters of any suspected elder abuse or neglect in nursing homes under California law. The catch is that California’s mandated reporting laws for elder abuse and neglect require reporting only when an elder has actually sustained harm or injury. What these gag provisions do is prevent employees who are union members from reporting potentially hazard conditions or unsafe practices which pose a threat of harm and which need to be corrected.

These contract provisions would be void and unenforceable as against public policy if the nursing homes ever tried to enforce them against employees who report unsafe conditions. But most employees would not know that. The mere presence of these contract provisions would have a chilling effect on employee whistle-blowing on elders’ behalf.

The documents also discuss how the nursing homes will receive more than $900 million in new Medicaid funding as a result of union lobbying on their behalf. Yet, “despite this huge cash infusion, union workers will see only $21 million in increased wages and benefits through the 2006-2007 rate year.”

The contracts, which were signed back in 2004, are also the subject of a San Francisco Weekly article about SEIU International President Andy Stern [http://www.sfweekly.com/2007-04-11/news/union-disunity/print ).

Union representatives refused the reporters’ requests to be interviewed, which is really all the confirmation we need that the contracts are in existence.

To view the contracts, go to:

Agreement to Advance the Future of Nursing Home Care in Washington http://www.consumerwatchdog.org/resourc ... CareWA.pdf

Agreement to Advance the Future of Nursing Home Care in California http://www.consumerwatchdog.org/resourc ... CareCA.pdf

CA Alliance to Advance Nursing Home Care, Inc. Board Meeting Agenda http://www.consumerwatchdog.org/resourc ... Agenda.pdf

To see union members' critique of the contracts, go to:
CA Alliance Agreement: Lessons Learned -- Union Members Own Criticism of The Agreements. http://www.consumerwatchdog.org/resourc ... eement.pdf

Report on Alliance Negotiations. http://www.consumerwatchdog.org/resourc ... ations.pdf

To read Jamie Court’s article, click here.

To read Matt Smith’s article in SFWeekly, click here.


Felicia Curran
www.ElderAdvocacyLaw.com