Kaiser Health News reported the Congressional Budget Office said that Medicare spending growth is slowing for a record third year in a row while outlays for Medicare will total 3.7 percent of the gross domestic product in 2013, rising to 4.3 percent of GDP in 2022, as enrollment in the program increases because of the baby boomer generation.  CBO expects the growth in Medicare spending in 2012 to be “substantially slower” than anticipated earlier in the year.

CBO Director Doug Elmendorf said at a press conference that the slower growth in Medicare is consistent with slower health care cost growth throughout the economy, which many analysts have observed.  The report also looked at Medicaid. Federal outlays for the program are expected to total only 1.7 percent of GDP next year and 2.4 percent of GDP in 2022 as the program expands under the 2010 health law.  In comparison to its March projections though, the CBO said Medicaid spending would decrease by $325 billion, or 7 percent, from 2013 to 2022. The bulk of that reduction is due to the Supreme Court’s ruling on the health law, which makes optional an expansion of the program that the law essentially required all states to put in place.


Kaiser Health News and NPR collaborated on a story about new tools to fight Medicare fraud.  “Fighting health care fraud in the U.S. can seem like an endless game of whack-a-mole. When government fraud squads crack down on one scheme, another pops up close by. But the fraud squads who look for scams in the federal Medicare and Medicaid programs have some new weapons: tools and funding provided by the health law.”

Medicare and Medicaid pay out some $750 billion dollars each year (at least $65 billion dollars a year is lost to fraud) to more than a 1.5 million doctors, hospitals and medical suppliers.  Criminals use real patient IDs to bill for wheelchairs that were never delivered or exams never performed. Dishonest doctors charge for care they never deliver or perform unnecessary operations. In one scam, criminals bill Medicare and a private insurer for the same patient.

The federal health law and other legislation directed the federal government to start using sophisticated anti-fraud computer systems similar to those used by credit card companies to detect suspicious purchases.  The computer program reviews Medicare claims – some 4 million a day – to look for outliers or spikes.   Also doctors and others who want to bill Medicare are being assessed based on their risk to commit fraud.

Over the next decade, Congress will direct some $340 million dollars in additional funding for government anti-fraud efforts.  The number of so-called Medicare Strike Force teams operating around the country has quadrupled since 2009. The number of defendants facing fraud charges jumped sharply last year. At the end of next month, Medicare is expected to report to Congress the number of new scams detected and the number of new cheats kept out of the program.


Tulsa World reported the settlement between the U.S. Department of Justice and with three men who are accused of knowingly making false statements as part of a elaborate nursing home mortgage-refinance scheme. Philip M. Green, Jerry Max Jiles and Virgil M. Harry Jr. agreed to pay more than $5.3 million to resolve allegations that they knowingly made false statements in applications to the U.S. Department of Housing and Urban Development for HUD-insured mortgage refinancing for three Oklahoma nursing homes.The United States alleged that the men made false statements regarding the eligible debt of the three nursing homes to get cash from the mortgage refinancings.

“Mortgage lenders and borrowers must deal fairly and honestly when public money is on the line,” Stuart F. Delery, acting assistant attorney general for the Department of Justice’s Civil Division, said in a press release.

See attached Order from Pennsylvania in Pisanno v. Extendicare denying a motion to compel arbitration in a nursing home case where wrongful death was alleged as well as a survival claim for the resident’s estate.  The resident cannot waive the statutory beneficiaries right to a jury trial.



CBS 11 News reported that a recent state investigation of Estates Healthcare and Rehabilitation Center, a Texas nursing home, confirmed that the facility’s neglect caused a resident’s death.  On July 8th Luis Martinez, a resident went missing.  Upon hearing the news his family feared the worst since Martinez suffered from Alzheimer’s disease and relied on a cane to walk.  For 7 long days, Martinez’s wife and children anxiously searched for him until his son stumbled on the sickening sight of his own father’s decomposing body a mere four blocks from the facility.

Sadly the investigation reveled that Martinez’s tragic death was completely preventable, had the facility simply done their job.  Martinez was assessed as being high risk for elopement and often expressed to staff that he planed to leave the “prison.”   Because of this, he was placed on a special floor with added safety precautionsHowever, Martinez was removed from the floor, without assessment, due to overcrowding.  Then Martinez, a know “flight risk”, was placed alone in a new room with a door leading to outside.  Incredible!

The only steps the facility took to ensure Martinez’s safety was placing a wander-guard that would alert them should he leave the facility. Clearly, that was not enough since a wander-guard was found in the trash the night he disappeared.  The administrator of the facility showed no remorse for the incident, commenting that she initially was not worried because she though the family had taken Martinez and even admitting that she knew the wander-guard alert system was “not fool-proof.”   She even bragged that her staff did a “fine job” dealing with Martinez’s disappearance.

Even more maddening, the facility faced no consequences for their neglect and simply had to submit a plan of correction for things to return to normal. The lack of concern and remorse the facility showed and the absence of consequences in such a senseless tragedy is extremely disheartening.

See attached Order from Kentucky called Ping v. Beverly explaining why a durable power of attorney does not grant the POA the authority to waive the principal’s right to a jury trial. In October 2008, Donna Ping, as the executrix of the Estate of her deceased mother, Alma Calhoun Duncan, brought suit against the owners and operators of The Golden Living Center, a long-term care facility owned and operated by Beverly Enterprises.  Beverly moved to dismiss the case based on an arbitration agreement.  The trial court denied that motion and explained that in its view Ms. Ping, who executed the Admissions Agreement on behalf of her mother, had not had authority to agree to arbitration, and further that the nursing home had obtained Ms. Ping’s signature on the agreement by wrongful means and without providing consideration.

Beverly Enterprises appealed that ruling to the Court of Appeals, which reversed. The Kentucky Supreme Court granted the motion for discretionary review to consider the important question of an agent’s authority to bind his or her principal, as well as wrrongful death beneficiaries, to an arbitration agreement presented with other documents upon the principal’s admission to a long-term care facility. Because we agree with the trial court that the agent in this case, Ms. Ping, was not authorized to enter an optional arbitration agreement, we reverse the decision of the Court of Appeals and remand the matter to the Franklin Circuit Court for additional proceedings.

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Seacoastonline.com reported that the Department of Health and Human Services recently investigated a nursing home in Sanford, Maine after receiving reports that maggots were found on an elderly resident.  Incredibly, the investigation of the Newton Center for Rehabilitation and Nursing found “no problems”.    How is that possible?

Additionally, the DHHS spokesperson defended the facility after the incident claiming that since the resident had been checked twelve hours before, the larvae were caught “early” and the vulnerable resident was fine.  Maybe you should ask the resident or his family if the resident was fine after laying in bed watching helplessly as maggots ate away at his tissue.

See attached Pennsylvania Superior Court case called Walton v. Kindred involving a comatose 35 year old whose mother executed admission papers including an arbitration “agreement” upon her entering a Kindred facility.  The agreement waived the resident’s constitutional right to a jury trial for abuse and neglect suffered by the resident.   Philadelphia trial court judge, Allan L. Tereshko, refused to enforce the arbitration agreement.

Plaintiff’s mother, Nancy Walton, signed an Arbitration Agreement and other admission paperwork and legal documents as Plaintiff’s “Legal Representative.” “Despite the fact that Plaintiffs mother signed the aforementioned documents presented to her by representatives of Kindred, Plaintiff never gave her mother power of attorney and never authorized her mother to make decisions on Plaintiffs behalf. Additionally, Nancy Walton has never been granted authority by a court to act on her daughter’s behalf.”

The issue for appeal is whether the Court erred in refusing to enforce the ADR Agreement because the Plaintiff s mother did not have the authority to execute the Agreement.   With respect to validity, the Agreement is only binding upon the Plaintiff if her mother had authority to act on her behalf. Plaintiff never gave her mother power of attorney and never authorized her mother to make decisions on her behalf. Therefore, Nancy Walton could only act on Plaintiffs behalf if an agency relationship existed between them.

An agency relationship may be created in one of four ways: express authority, implied authority, apparent authority and authority by estoppel. Express authority exists when a principal expressly grants authority directly to an agent as to certain matters. Implied authority binds a principal to those acts of the agent that are “proper, usual and necessary” in the exercise of the agent’s express authority. Apparent authority arises where a principal, “by words or conduct, causes people with whom the alleged agent deals to believe that the principal has granted the agent authority” that the agent purports to exercise. Such authority emanates from the principal’s action and not that of the agent.  Finally, authority by estoppel occurs when a principal fails to supervise the affairs of his agent thus allowing the agent to exercise authority not granted to him. If the principal fails to take reasonable measures to protect himself and third parties dealing with an agent from harm caused by the agent, then the principal may be estopped from denying the authority of the agent.

“Here, Appellants have similarly failed to satisfy the burden of establishing an agency relationship. First, the Appellants have offered no evidence of a writing expressly granting Nancy Walton actual authority. Second, Appellants have not produced any evidence demonstrating that Plaintiff was aware of the ADR clause, authorized her mother to sign the agreement, or otherwise agreed to arbitrate any disputes. Moreover, Appellants were aware that Plaintiff was in a coma upon her admission to Kindred Hospital Philadelphia and have failed to offer any evidence of Plaintiffs conduct at the time the ADR Agreement was executed. On the contrary, the deposition testimony of both Plaintiff and her mother clearly and unequivocally indicates that Plaintiff was not aware of the arbitration clause, did not authorize her mother to sign the ADR Agreement, or otherwise agree to arbitrate any disputes. As such, no agency relationship existed between Plaintiff and her mother. Therefore, Plaintiffs mother did not have authority to sign the ADR Agreement.”

CNN recently released a disturbing video that shows an employee attacking a resident of an adult group home in Connecticut. The video shows a caregiver ruthlessly kicking the woman in the stomach, whipping her with a belt, and grabbing the poor woman by her hair and dragging her across the floor. The victim of the attack, who has an intellectual disorder, relies greatly her caregivers, requiring assistance with bathing and eating.

The DVD which contained the footage of the attack was anonymously sent to the operators of the home and ironically titled “The Perfect Employee.”  The employee was placed on unpaid administrative leave from the facility and is the subject of an ongoing police investigation.  I wish there were more people willing to protect these residents by reporting abuse or setting up video to record neglect and mistreatment.

The website Medical Billing and Coding recently had an interesting article on the 10 healthcare jobs affected by Obamacare.  Excerpts below:

1.  Medical records and billing:
Health care support industries, especially medical records and billing companies, stand to greatly benefit from Obamacare. As potentially 30 million new patients will need health care services, they’ll need someone to keep track of all their medical records and billing. In fact, the American Recovery and Reinvestment act is commonly known as “the stimulus bill” in this industry. It’s already resulted in a $19 billion push to electric medical records, a push that is set to increase and demand more professionals in this field.

2.  Health care technology:
IT services for health care is already a hot industry, and it’s going to get hotter as the health care law demands improvements in technology from hospitals, doctors, and pharmaceutical companies. High tech health care startups are focusing on meeting these needs, with startups developing tools that allow patients to find doctors with ratings, as well as tools that help health care providers keep up with demand and offer a more consumer-focused experience.

3.  Medical devices:
Medical device manufacturers have been in turmoil for a few years already due to market dynamics, and the Obamacare ruling is likely to shake things up a bit more. On the upside, Obamacare is likely to bring in millions of new customers, adding demand for more workers and security for existing ones. But it remains to be seen whether or not the industry can afford those workers as it responds to a 2.3% medical device tax that will cut into profits.

4.  Physicians:
Millions of Americans who are now living without health insurance will have new health plans under the ACA, and with those health plans, are likely to seek out the services of primary care physicians. That means doctors, and especially primary care physicians, will see an increased demand for work.

5.  Medical support staff:
As millions of additional Americans begin to demand service for their health care, it’s clear that more workers will be needed to meet this demand.  While it takes years to train physicians and nurse practitioners, support staff can be fully trained in a matter of months. Assistants, technicians, and other medium-skill medical jobs will be plentiful.

6.  Skilled medical workers:
Another group that will benefit from the increased demand (and shortage) of physicians is what some people call “physician extenders,” workers that do a lot of the work of physicians, but do not have M.D. behind their name. These include physicians’ assistants, nurse practitioners, and care managers, allowing physicians to see more patients and keep up with demand.

7.  Urgent care:
Yet another fallout of the coming physician shortage is the need for more urgent care professionals. Patients who can’t wait to see a doctor are likely to turn to urgent care centers. We will see an increase in physicians creating urgent care facilities, and medical professionals with a background in urgent or emergency care will see an increased demand.

8.  Insurance agents:
Medical insurance agents are concerned about job security under Obamacare, and with good cause: the insurance industry is getting squeezed by the ruling. Under the act, individual and small group market insurers must spend at least 80 cents of every dollar in premiums collected on health care. In the large group market, it jumps to 85 cents. Insurance agent commissions are not defined as a medical expense, and insurance companies may find it difficult to find money for commissions in their 15 to 20 cents outside of medical expenses.

9.  Insurance employees:
It’s not just insurance agents feeling the crunch; all health insurance employees are likely to feel an impact. With 20% or less left for payroll and administration, just about everyone working for an insurance company has a target on their back.

10.  Pharmaceutical workers:

With lots of new customers, pharmaceutical companies will be working overtime to keep up with demand, and likely hiring new workers. But at the same time, cost changes may put pressures on drug companies that lead to job cuts. Industry experts like Holly Strom, former president of the California State Board of Pharmacy, believe that these changes are advantageous only to Big Pharma. Strom believes “only large players would be the ones capable of doing big business.” So workers with larger pharmaceutical companies are likely to do well, while workers with smaller drug companies may be in trouble.