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Wednesday, September 24, 2008

Ind. Gov't. - Medicaid rulemaking proposal draws criticism from elder law attorneys

Here is the proposed rule. The Indiana FSSA posted a "Notice of Intent' to adopt a rule on 4/30/08. As its title indicates, the notice is just that, it does not spell out the specifics.

The FSSA posted the text of the proposal rule changes on 8/27/08, along with a notice that there would be a public hearing on Sept. 19th. The applicable law, IC 4-22-2-24, requires a minimum of 21 days between the time the text of a proposed rule is made available and the date of the public hearing. The date of the public hearing here met that standard, providing you include weekends in the count.

Today Ken Kusmer of the AP reports:

INDIANAPOLIS -- Advocates for the infirm and nursing homes say the state is rushing Medicaid changes that would leave some patients with no means to pay for care and some nursing homes forced to close their doors because of money given to family members or charities years ago.
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Under rule changes proposed by the Family and Social Services Administration, someone who gave $1,200 to a church each of the past five years, $500 to charity and $2,500 to help a financially strapped child might be penalized more than two months of Medicaid coverage for nursing-home care, elder-law attorneys say.

Also raising alarm has been the speed with which the agency has moved the rule toward adoption: A draft was published Aug. 27, and the agency held a public hearing last week. A public-comment period was set to close Friday, with the rule due to take effect Dec. 1.

"I don't think many people realize how devastating these proposed rules might be," Robert Smith, a Syracuse attorney who helps nursing homes get Medicaid or other payments for patients, said yesterday. "This thing is coming through like a runaway freight train."

Family and Social Services, in response to the criticism from the attorneys and others, has extended the public-comment process by one week to Oct. 3, state Medicaid Director Jeff Wells said. He added that the proposed rule is a draft subject to revisions and likely won't take effect before early next year.

"We'll take a look at all comments and concerns presented by the public," he said. "There's no interest on the part of the agency to move any faster than what the normal rulemaking process is."

Smith said that the rule changes could force already struggling nursing homes to turn away patients or to admit patients with no assurance that they'll get paid. Hospitals that normally would send patients to nursing homes for rehabilitation or extended care might find no one willing to take them.

"That starts to stack up residents in the hospitals," Smith said.

The agency is adopting the rules to comply with the Federal Deficit Reduction Act of 2005, aimed in part at preventing people with ample means from scamming the government into providing Medicaid or other forms of assistance.

Critics complain the rule changes at issue would dock Medicaid applicants for money they had given over the previous five years as gifts to children and grandchildren, to churches and charities, to family members with financial problems, or payments to relatives who help care for them unless they had entered into a legally binding personal services contract. * * *

The Indiana chapter of the National Academy of Elder Law Attorneys has sought a voice in the rulemaking for two years but charged the Indiana agency has been so focused on privatizing eligibility services for Medicaid, food stamps and other welfare that the agency put off action on the federally required rulemaking until recently.

"Seniors, disabled people, nursing homes and elder-law attorneys have all reported increasing difficulty reaching the people who make decisions about a Medicaid application, even by phone. Face-to-face meetings with a decision-maker are virtually nonexistent," the academy said in a statement.

The chapter submitted a 35-page brief at the public hearing, but has received no response, said Keith Huffman of Bluffton, the chapter's president.

"They have been totally consumed by the privatization process," he said. "This has gotten a back burner."

Wells, however, said that the first notice of the rulemaking was published in April and nursing homes and some other stakeholders have had voices in the process. He also said privatization of eligibility services had no effect on the rulemaking process.

Tim Evans reports today in the Indianapolis Star:
Indiana is proposing new limits on Medicaid coverage for people seeking nursing home care if they used their money to make a contribution to a charity or paid a family member who is caring for them without a formal contract.

The state says its proposal is aimed at preventing fraud, which occurs when people who otherwise have the means to pay for care transfer those assets to relatives and others so they can qualify for Medicaid. Applicants would be considered eligible for the state's help once it's determined they meet the new financial thresholds.

Critics, however, say the new rules would be among the most punitive in the nation.

Indianapolis lawyer Scott R. Severns and other members of the Indiana Chapter of the National Academy of Elder Law Attorneys contend the changes would punish senior citizens for contributions they make to churches and charities. Even legitimate payments to family members who care for their elderly parents or relatives without a contract could disqualify applicants, he said. * * *

Indiana's director of Medicaid, Dr. Jeff Wells, said many of the changes are necessary to meet requirements of the federal Deficit Reduction Act of 2005, including extending the "look-back" period for many transactions to five years from three. At least 33 other states have already enacted new rules to meet the federal mandate, according to Donna Folkemer of the National Conference of State Legislatures.

The state Family and Social Services Administration, which administers the Medicaid program, conducted a public hearing on the changes last week and will accept written comments through Oct. 3.

Wells said the proposed rules are just a starting point.

"There are some areas where there is some flexibility, which is why the (public's) feedback is so critical," he said.

The new rules are needed to prevent "gaming" of the system by people who have the financial resources to pay for their own care, Wells said.

Under current regulations, he said, many older Hoosiers are able to hide or improperly shift assets so they qualify for Medicaid.

What happens next? Additional written public comments may be submitted to FSSA by Oct. 3rd, according to the Star story. From the applicable statute:
IC 4-22-2-27. Consideration of comments received at public hearings

Sec. 27. The individual or group of individuals who will finally adopt the rule under section 29 of this chapter shall fully consider comments received at the public hearing required by section 26 of this chapter and may consider any other information before adopting the rule. Attendance at the public hearing or review of a written record or summary of the public hearing is sufficient to constitute full consideration. (As added by P.L.31-1985, SEC.16.)

Then FSSA will finalize the rule; if normal procedures are followed, the next the public will see of it is when the final text of the adopted rule is posted online.

The ILB has obtained a copy of the "brief submitted at the public hearing" by Keith P. Huffman, President of the Indiana Chapter of the National, Academy of Elder Law Attorneys, Dale & Huffman, Bluffton, IN. Access the brief here.

Posted by Marcia Oddi on September 24, 2008 08:54 AM
Posted to Indiana Government