Tagged Nursing Homes

Class-Action Lawsuit Seeks To Let Medicare Patients Appeal Gap in Nursing Home Coverage

Medicare paid for Betty Gordon’s knee replacement surgery in March, but the 72-year-old former high school teacher needed a nursing home stay and care at home to recover.

Yet Medicare wouldn’t pay for that. So Gordon is stuck with a $7,000 bill she can’t afford — and, as if that were not bad enough, she can’t appeal.

The reasons Medicare won’t pay have frustrated the Rhode Island woman and many others trapped in the maze of regulations surrounding something called “observation care.”

Patients, like Gordon, receive observation care in the hospital when their doctors think they are too sick to go home but not sick enough to be admitted. They stay overnight or longer, usually in regular hospital rooms, getting some of the same services and treatment (often for the same problems) as an admitted patient — intravenous fluids, medications and other treatment, diagnostic tests and round-the-clock care they can get only in a hospital.

After knee replacement surgery, Betty Gordon needed to go to a nursing home but because she hadn’t been hospitalized for three days, Medicare would not cover her care there.(Courtesy of Betty Gordon)

But observation care is considered an outpatient service under Medicare rules, like a doctor’s appointment or a lab test. Observation patients may have to pay a larger share of the hospital bill than if they were officially admitted to the hospital. Plus, they have to pick up the tab for any nursing home care.

Medicare’s nursing home benefit is available only to those admitted to the hospital for three consecutive days. Gordon spent three days in the hospital after her surgery, but because she was getting observation care, that time didn’t count.

There’s another twist: Patients might want to file an appeal, as they can with many other Medicare decisions. But that is not allowed if the dispute involves observation care.

Monday, a trial begins in federal court in Hartford, Conn., where patients who were denied Medicare’s nursing home benefit are hoping to force the government to eliminate that exception. A victory would clear the way for appeals from hundreds of thousands of people.

The class-action lawsuit was filed in 2011 by seven Medicare observation patients and their families against the Department of Health and Human Services. Seven more plaintiffs later joined the case.

“This is about whether the government can take away health care coverage you may be entitled to and leave you no opportunity to fight for it,” said Alice Bers, litigation director at the Center for Medicare Advocacy, one of the groups representing the plaintiffs.

If they win, people with traditional Medicare who received observation care services for three days or longer since Jan. 1, 2009, could file appeals seeking reimbursement for bills Medicare would have paid had they been admitted to the hospital. More than 1.3 million observation claims meet these criteria for the 10-year period through 2017, according to the most recently available government data.

Gordon is not a plaintiff in the case, but she said the rules forced her to borrow money to pay for the care. “It doesn’t seem fair that after paying for Medicare all these years, you’re told you’re not going to be covered now for nursing home care,” Gordon said.

No one has explained to Gordon, who has hypoglycemia and an immune disease, why she wasn’t admitted. The federal notice hospitals are required to give Medicare observation patients didn’t provide answers.

Even Seema Verma, the head of the Centers for Medicare & Medicaid Services, is puzzled by the policy. “Better be admitted for at least 3 days in the hospital first if you want the nursing home paid for,” she said in a tweet Aug. 4. “Govt doesn’t always make sense. We’re listening to feedback.” Her office declined to provide further explanation.

Patients and their families can try to persuade the physician or hospital administrators to change their status, and sometimes that strategy works. If not, they can leave the hospital to avoid the extra expenses, even if doing so is against medical advice.

The requirement of three consecutive days as a hospital inpatient to qualify for nursing home coverage is written into the Medicare law. But there are exemptions. Medicare officials don’t apply it to beneficiaries in some pilot programs and allow private Medicare Advantage insurers to waive it for their patients.

Concerned about the growing number of people affected by observation care, Medicare officials created a “two-midnight” rule in 2013. If a doctor expects a patient will be sick enough to stay in the hospital through two midnights, then it says the patient should generally be admitted as an inpatient.

Yet observation claims have increased by about 70% since 2008, to more than 2 million in 2017. Claims for observation care patients who stay in the hospital for longer than 48 hours — who likely would qualify for nursing home coverage had they been admitted —rose by nearly 159%, according to data Kaiser Health News obtained from CMS. Yet the overall growth in traditional Medicare enrollment was just under 9%.

Justice Department lawyers handling the case declined to be interviewed, but in court filings they argue that the lawsuit accuses the wrong culprit.

The government can’t be blamed, the lawyers said, because the “two-midnight” rule gives hospitals and doctors — not the government — the final word on whether a patient should be admitted.

The government’s lawyers argue that since Medicare “has not established any fixed or objective criteria for inpatient admission,” any decision to admit a patient is not “fairly traceable” to the government.

Like Gordon, some doctors also complain about observation care rules. An American Medical Association spokesman, who spoke on condition of not being named, said the “two-midnight” policy “is challenging and illogical” and should be rescinded. “CMS should instead rely on physicians’ clinical judgment to determine a patient’s inpatient or outpatient status,” he added.

HHS’ Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It’s No. 1 on a list issued last month of the 25 most important inspector general’s recommendations the agency has failed to implement.

The Medicare Payment Advisory Commission, which counsels Congress, has made a similar suggestion.

However, Colin Milligan, a spokesman for the American Hospital Association, is more positive about the “two-midnight” rule. It “recognizes the important role of physician judgment,” he said.

Medicare isn’t dictating what physicians must do, said a physician who has researched the effects of observation care. “It’s a benchmark upon which to base your decisions, not a standard or a mandate,” said Dr. Michael Ross, a professor of emergency medicine at Emory University School of Medicine in Atlanta. He supervises observation care units at Emory’s five hospitals and was chairman of a CMS advisory subcommittee on observation care.

Other physicians claim that since HHS pays hospitals and doctors to treat Medicare patients, the agency’s policies weigh on their decisions.

“One of the hardest things to do is to get physicians to predict what will happen with patients — we like to hedge our bets and account for all possibilities,” said Dr. Tipu Puri, a physician adviser and medical director at the University of Chicago’s medical center. “But we’re being forced to interpret the rules and read between the lines.”

In the meantime, observation care patients who get follow-up care at a nursing home may soon receive a puzzling notice. A Medicare fact sheet issued last month “strongly encourages” nursing home operators to give an “advance beneficiary notice of non-coverage” to patients who arrive without the required prior three-day hospital admission.

But that notice says they can choose to seek reimbursement by submitting an appeal to Medicare — an option government lawyers will argue in court is impossible.

Crossing Paths: A Baby and His Grandfather

Photo

Credit Josephine Sittenfeld and Thad Russell

In a photo essay, Thad Russell and Josephine Sittenfeld chronicle the end of life of a beloved father and the beginning of life of their new baby.

Nov. 20 – Thad

I’ve left my very pregnant wife, Jo, and our little daughter, Polly, to drive up to northern Vermont to retrieve my 86-year-old father and bring him back to Providence.

But when I get there, Dad is hunched over in his chair in the living room. He looks thin and tired, unshaven, confused, cold, short of breath.

In a weak voice he says that his lungs aren’t working and he can’t get enough air. With his arm hanging limply over my shoulder I move him toward his bedroom. I take off his shoes and glasses, turn off his light, and kiss him goodnight. I go to bed shaken to the core.

Dad grew up on a farm, played football in high school, went to M.I.T. to study engineering and architecture, and had a long career designing and building houses.

He became an expert skier back in the 1950s when downhill skiing was rebellious and dangerous.

And now, maybe for the first time ever, he doesn’t want to get out of bed.

I call my friend Bill, an emergency room doctor. He tells me quietly and firmly, “Call 911 and get him to a hospital ASAP. Don’t think about it. Just do it.”

This is the last time my father will ever see his land or be in his own house or sleep in his own bed. In fact, it is the last time he will sleep in any bed that isn’t in a hospital or nursing home. It’s the last time he will live without the assistance of a walker or a wheelchair, a professional caregiver or an adult diaper.

At the hospital, Dad’s cardiologist puts it bluntly. “Your father needs a new heart, and he’s not going to get one. I’ve used up my bag of tricks. Have you thought about hospice?”

Photo

Credit Josephine Sittenfeld and Thad Russell

Jo

That tiny, rapidly fluttering shape amid the gray static — even though I’ve been through ultrasounds before with my first child, the evidence of the life inside me is still awe-inspiring. I feel excited and tearful.

Nov. 28 – Thad

Dad’s vital signs are bad. He has trouble breathing and now needs oxygen full-time. It’s Thanksgiving morning, and Dad is taken by ambulance from the nursing home to the Miriam Hospital. I meet him in the emergency room, abandoning Jo to cook her first turkey and prepare for a house full of in-laws. The emergency room staff does a battery of tests and confirms what we already know: Dad is suffering from late-stage heart failure.

But after a few hours, he’s released, and I bring him home for Thanksgiving dinner.

Dec. 25 – Thad

Amazingly, Dad is able to be at our house on Christmas Day. He doesn’t believe in Santa Claus, or even Jesus for that matter. But he does like a good turkey dinner.

Photo

Credit Josephine Sittenfeld and Thad Russell

Jan. 9 – Jo

I wake up at exactly midnight with contractions. Around 6 a.m. the contractions get closer together. Polly wakes up and thinks it’s funny that I’m mooing like a cow. Thad and I take Polly to a neighbor’s house and head to the hospital.

I have another killer contraction in the lobby. I’m on all fours on the floor, moaning. People are staring.

Once we finally get to the room, I get into the tub. It feels good to be in the water, but the contractions are painful and intense — after the tub I’m on a ball, then on the bed, then standing, then on the toilet, then back on the bed.

Thad is on the phone in the next room trying to coordinate a urology appointment for his dad when all of a sudden things intensify. The baby’s head starts crowning, and it burns like hell. The nurse runs out to get Thad. And with a few more pushes our baby is out.

When they hand him to me, he’s big and grayish, but pretty quickly turns pink.

It’s intense and beautiful and crazy and amazing.

Baby Curtis lies on my chest, still connected through the umbilical cord, and Thad and I just take him in.

Photo

Credit Josephine Sittenfeld and Thad Russell

Jan. 13 – Thad

Dad is excited to meet his first grandson  —  and a little confused. He keeps calling him Matt, and asks when we have to give him back.

Photo

Credit Josephine Sittenfeld and Thad Russell

Jan. 24 – Thad

A nurse calls to tell me that Dad has fallen. I meet him in the E.R., again. He looks pretty beat up and has a big gash on the top of his head.

The test results worry the doctors.

And yet he survives  —  for days, then weeks, then months.

I visit Dad as often as I can and for as long as I can. I pick him up and we go on little field trips: to doctors’ appointments, to get new eyeglasses, to get his hearing aids cleaned, or to our house for dinner.

Photo

Credit Josephine Sittenfeld and Thad Russell

Occasionally, I find Dad asleep in his room, his face lit by the light of CNN Headline News. Some nights I stay with him for quite a while, rubbing his feet, watching him breathe and wondering what he is dreaming about.

I feel conflicted  —  it’s not that I want Dad to die, but I sometimes wonder if this is the way he ever wanted to live.

Dad can’t walk, get dressed or complete most basic daily routines without assistance, but his spirits are good.

In July, Dad has a bad fall, spends another week in the hospital. I call my siblings and tell them it’s time. We’re going to start hospice.

Photo

Credit Josephine Sittenfeld and Thad Russell

Aug. 8 – Jo and Thad

Dear Family & Friends –

We are sad to report that Sam died Friday evening. He was 87 years old.

For the past year, Dad continually impressed us with his dignity, toughness and overriding will to live. He  —  and we  —  were rewarded with some distinctly good days that we will never forget.

But last week, he and his heart decided it was time. He retired early one evening, declaring that his bed felt “wonderful,” and started his long sleep.

In the end, he passed quietly and gracefully, surrounded by his family (including his bouncy and bubbly baby grandson Curtis, who played happily at the foot of his bed), and a wonderfully compassionate team of rotating attendants and nurses.

Ever the solar animal, he waited until just after sunset to pass.

With love and thanks,

Thad & Jo

Photo

Credit Josephine Sittenfeld and Thad Russell


Thad Russell and Josephine Sittenfeld are photographers who live in Providence, R.I., and teach at the Rhode Island School of Design. More of their work can be found at thadrussell.com and josittenfeld.com.

Finding Ways to Keep Patients at Home

Photo

Credit Getty Images

My patient was a proudly elegant woman in her 70s who lived alone. Her Parkinson’s disease had so severely restricted her ability to move that it would take her hours to get dressed in the morning. And leaving the house was virtually impossible, so she had to rely on neighbors and friends from her church community for help with shopping.

She was adamant that she wouldn’t want aggressive treatment to keep her alive. She’d been hospitalized many times, and she told me she wouldn’t want to take a hospital bed that would be better used for someone else. So she dutifully completed an advance directive that made her wishes clear. It said that she would not want to be kept alive on a breathing machine, and that she wouldn’t want cardiopulmonary resuscitation if her heart stopped. She also wouldn’t want to be fed through a tube if she was no longer able to eat. What was most important to her, though, was staying at home and avoiding a nursing home.

As a palliative care physician, I always urge my patients to complete advance directives. These are legal documents that tell doctors and family members what treatment they do and don’t want if they’re ever unable to make decisions for themselves. That’s important, because if I don’t know what my patients want, the default is to do everything to keep them alive, which typically results in unnecessary and costly treatment. Indeed, one of the most often-cited arguments for advance directives is the fact that 25 percent of Medicare spending is for people in the last year of life.

When my patient developed a cough and a fever, likely a result of pneumonia, she became too confused to make decisions for herself. Thanks to her advance directive, her family knew that she didn’t want aggressive treatment, and we knew that she wanted to stay home. So we arranged for short-term daily nursing visits and enough support so that, with additional help from her family, she was able to remain at home as she wanted.

I thought that she would get worse without aggressive treatment in the hospital, and that we would enroll her in hospice, so I was surprised when she began to improve. Soon she was able to make decisions for herself and even returned to the same level of independence that she’d had before she became sick. That’s when it became obvious to me that advance directives have their limits.

My patient lived, as many people with chronic, serious illnesses do, on a thin ledge of independence. The smallest nudge — a few missed medication doses, the loss of just a little support — left her entirely vulnerable. In my patient’s case, that nudge came two months later, when her neighbors ran into financial problems and their daughter, who had been doing the grocery shopping for my patient, had to take an after-school job. My patient valued her independence more than anything, so whenever her neighbors and her out-of-state family checked on her, or when we called her, she told us all that she was fine.

For three weeks, my patient subsisted on nothing but white rice, because that was all she had in the house. When her grand niece called us and asked us to check on her, we sent a social worker and a nurse to visit her. We found her housebound, surrounded by garbage, with no clean laundry and no toilet paper.

Despite our best efforts, we couldn’t do enough to keep her safe at home, so she went to live in a nursing home, where she spent the last two months of her life. An advance directive had helped her stay out of the hospital, as she had wanted. And perhaps it even made a bed available for someone who needed it more, as she’d hoped. But that piece of paper didn’t help her to live out her final months with the sort of comfort and dignity that she deserved.

When we talk about advance directives and reducing costly and unnecessary treatment at the end of life, we should also be talking about ways we can provide more support. We need to make sure that people like my patient have access to the kinds of care that can help them remain safely and comfortably at home.

Now when I help my patients complete an advance directive that defines the treatment they don’t want, we also discuss what support they’ll need in the future. I talk with my patients and their families about what’s going to be necessary to keep them safe and comfortable in their homes today, and next month and — if they’re lucky — for the next few years.

Those sorts of discussions are essential, but they’re not enough. We also need to revise the way we think about advance directives. Advance directives help reduce health care costs at the end of life by avoiding aggressive treatment, but that’s not the most compelling argument for them. It’s not enough to reduce what we spend on aggressive treatment at the end of life; we also need to spend those resources in better ways.

For someone around my patient’s age, the average cost of a hospitalization is about $13,000. So Medicare should have been willing to spend $13,000 to keep her safe and comfortable at home. That sum would have been more than enough to pay for a visiting nurse to continue to check on her after she recovered from pneumonia and a home health aide to help her with bathing and dressing. And it could have paid the girl next door to do her grocery shopping so a frail elderly woman didn’t need to subsist on white rice because it was the only food she had.

We should have been able to provide all of that help. My patient was adamant that she didn’t want to spend her last days of life in a hospital, taking up a bed that someone else could use. Let’s make sure that when people like her forgo costly treatment at the end of life, they get something in return.

Dr. David Casarett is a professor at the University of Pennsylvania Perelman School of Medicine and the author of “Stoned: A Doctor’s Case for Medical Marijuana.”

For more fitness, food and wellness news, follow us on Facebook and Twitter, or sign up for our newsletter.

Using the Arts to Promote Healthy Aging

Photo

Credit Paul Rogers

Throughout the country, the arts are pumping new life into the bodies and minds of the elderly.

Two summers ago, a remarkable documentary called “Alive Inside” showed how much music can do for the most vulnerable older Americans, especially those whose memories and personalities are dimmed by dementia.

The film opens with a 90-year-old African-American woman living in a nursing home being asked about her life growing up in the South. All she could say in response to specific questions was, “I’m sorry, I don’t remember.”

But once she was fitted with an iPod that played the music she had enjoyed in her youth, her smile grew wide and her eyes sparkled as vivid memories flooded her consciousness. She was now able to describe in detail the music and dances she had relished with her young friends.

At another nursing home, a man named George with advanced dementia refused to speak or even raise his head when asked his name. He too was outfitted with an iPod, and suddenly George came back to life, talking freely, wiggling to the music in his wheelchair and singing along with the songs he once loved.

The Music and Memory project that provided the iPods was the inspiration of a volunteer music lover named Dan Cohen, and has since spread to many nursing homes and facilities for the aged around the country. Alas, not nearly enough of them. Medicaid, which fully covers the cost of potent drugs that can turn old people into virtual zombies, has no policy that would pay for far less expensive music players. So the vast majority of nursing home residents who might benefit are deprived of this joyous experience.

Nonetheless, across the country, the arts in their myriad forms are enhancing the lives and health of older people — and not just those with dementia— helping to keep many men and women out of nursing homes and living independently. With grants from organizations like the National Endowment for the Arts and the National Institute on Aging, incredibly dedicated individuals with backgrounds in the arts have established programs that utilize activities as diverse as music, dance, painting, quilting, singing, poetry writing and storytelling to add meaning, joy and a vibrant sense of well-being to the lives of older people.

Photo

Walter Hurlburt, 90, decorates rooms at the Burbank Senior Artists Colony, a retirement facility where he lives.

Walter Hurlburt, 90, decorates rooms at the Burbank Senior Artists Colony, a retirement facility where he lives.Credit

Through a program called EngAGE in Southern California, 90-year-old Walter Hurlburt, who once made a living as a sign painter, now decorates rooms at the Burbank Senior Artists Colony, a retirement facility where he lives, with lovely oil paintings he creates from pictures he finds in magazines and books. Mr. Hurlburt regularly attends classes on various art forms at the residence where, he told me, “I’m always learning something new.”

His buddy at the residence, Sally Connors, an 82-year-old former schoolteacher, surprised herself by writing and directing a screenplay that was performed by fellow residents. Then, with Dolly Brittan, 79, a former early childhood educator, they both surprised themselves by writing their life stories in rap and performing their rap memoirs on a stage for at-risk teenagers they were mentoring.

Both she and Ms. Connors said their newfound involvement with the arts has made them feel decades younger.

Tim Carpenter, the executive director of EngAGE, is now working to expand this approach to senior living in other cities, including Minneapolis, Portland, Ore., and Raleigh, N.C. His goal is to create a nationwide network of programs for seniors that keep them healthy, happy and active through lifelong learning in every conceivable art form, enabling them to live independently as long as possible.

As in Burbank, Mr. Carpenter is promoting the development of arts colonies in senior residences where residents can study and create art in all its forms and where they can see their artistic creations come to life on a stage.

Dr. Gene D. Cohen, a gerontologist at George Washington University who died in 2009, was a staunch advocate for the mental and physical benefits of creativity for the elderly. He directed the Creativity and Aging Study, a controlled study sponsored by the National Endowment for the Arts at three sites, including Elders Share the Arts in Brooklyn, N.Y., that showed after only a year that the health of elders in the cultural groups stabilized or improved in contrast to a decline among those in the control groups.

In a film called “Do Not Go Gently,” Dr. Cohen, who founded the Creativity Discovery Corps, featured an architect who, at age 96, submitted a plan for redeveloping the World Trade Center site. Dr. Cohen pointed out that creativity challenges the mind and results in the formation of new dendrites, the brain’s communication channels.

At 26 different facilities in the Washington, D.C., area, 15 teaching artists work with seniors in centers where they live or visit regularly. Janine Tursini, director of Arts for the Aging in Rockville, Md., seeks to “get at what best jazzes up older adults.” Groups of about 20 older adults get involved in what she calls “art making” — music, dance, painting or storytelling.

Ms. Tursini said the N.E.A.-sponsored study showed that when older people become involved in culturally enriching programs, they experience a decline in depression, are less likely to fall and pay fewer visits to the doctor. In another study among people with Alzheimer’s disease, a sculpting program improved the participants’ mood and decreased their agitation even after the program ended.

“The arts open people up, giving them new vehicles for self-expression, a chance to tell their stories,” Ms. Tursini said. “The programs capitalize on assets that remain, not on what’s been lost.”

Naomi Goldberg Haas created the Dances for a Variable Population program to get older adults dancing. People who haven’t moved in years, even those who can no longer stand, can participate. Young professionals and older dancers go to various sites — libraries, churches, senior centers — where elders gather and encourage them to “move more.”

“Movement enriches the quality of their lives,” Ms. Haas said. “It’s absolutely healing. Balance, mobility, strength — everything improves.”

Social engagement, which nearly all these programs provide, has been repeatedly found in major population studies to prolong life and enhance healthy aging. Clinically, the programs have been linked to lowered blood pressure, reduced levels of stress hormones, and increased levels of the “happiness hormones” that are responsible for a runner’s high.

Interested in more Well Family? Sign up to get the latest news on parenting, child health and relationships plus advice from our experts to help every family live well.