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Katrina Cohens

Judge Allows Medicare Observation Status Appeal Rights Case to Proceed

By | PRESS RELEASE | No Comments

Feb. 10, 2017 – In a decision released on February 8, 2017, a federal judge allowed Medicare hospital patients seeking a right to appeal their placement on “outpatient observation status” to proceed with their lawsuit. The Barrows case, now called Alexander v. Cochran, is a proposed nationwide class action brought by individuals who were forced to pay up to $30,000 for post-hospital skilled nursing facility care because they had been classified as outpatients in observation status during their hospitalizations.

Although care provided to patients on observation status is indistinguishable from inpatient care, it does not count toward the three-day inpatient hospital stay requirement for Medicare coverage of nursing home care. This leaves beneficiaries with the burden of paying for extremely costly nursing and rehabilitative care themselves – or forces them to forgo necessary care.

The court addressed whether Medicare beneficiaries have a constitutionally protected interest in coverage of their hospitalizations as inpatients rather than as observation “outpatients.” If such an interest exists, beneficiaries could appeal their observation status through Medicare’s administrative review process, which they are presently not allowed to do.

The opportunity to appeal is critical because of the severe ramifications that can result from the observation status categorization. The late Martha Leyanna of Delaware, for example, had to pay thousands of dollars to a nursing home because her six-day hospitalization was classified as observation status and thus did not meet Medicare’s requirement of a three-day inpatient stay for coverage of post-hospital care.

The decision documents the plaintiffs’ evidence of how Medicare pressures hospitals, through audits and enforcement actions, to place more patients on observation status, and describes the dogged but unsuccessful efforts of individual plaintiffs to appeal by calling numerous offices and Congressional representatives.

Judge Michael P. Shea of the U.S. District Court of Connecticut concluded that genuine factual disputes remain about the extent to which commercial screening guides used by Medicare contractors and hospitals influence the outcome of patient status determinations. The judge also largely denied the government’s request to dismiss the case on two other grounds, allowing the case to proceed.

Alice Bers of the Center for Medicare Advocacy, lead counsel for the plaintiffs, said “The decision is an important step in the establishment of a fair process for patients who risk having to pay thousands of dollars for necessary medical care or forgo that care altogether. Hospitals routinely appeal Medicare’s determination of whether a stay was inpatient or observation status. Older adults and people with disabilities who rely on Medicare for necessary health care should have the same right.”

In addition to attorneys from Justice in Aging, the plaintiffs are represented by attorneys from the Center for Medicare Advocacy, and the law firm of Wilson Sonsini Goodrich & Rosati. The court ordered the parties to confer and submit a schedule for further proceedings by February 22, 2017.

Justice in Aging is a national non-profit legal advocacy organization that fights senior poverty through law. Formerly the National Senior Citizens Law Center, since 1972 we’ve worked for access to affordable health care and economic security for older adults with limited resources, focusing especially on populations that have traditionally lacked legal protection such as women, people of color, LGBT individuals, and people with limited English proficiency. Through targeted advocacy, litigation, and the trainings and resources we provide to local advocates, we ensure access to the social safety net programs that poor seniors depend on, including Medicare, Medicaid, Social Security, and Supplemental Security Income (SSI).

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Contact: Vanessa Barrington
510-256-1200 direct

Fighting Improper Billing of Dual Eligibles: New Strategies


Doctors, hospitals, and other providers often bill dual eligible Medicare beneficiaries and Qualified Medicare Beneficiaries (“QMBs”) for services that should be covered under Medicare or Medicaid. This practice of improper billing is illegal and can cause low-income beneficiaries to go into debt, skip needed medical care, or end up without sufficient funds to pay for necessities like food and rent.

Justice in Aging has created several new resources that advocates can use to stop providers from billing their clients improperly. Today we’re releasing all of our improper billing resources together as a toolkit on our website. In the Improper Billing Toolkit, you’ll find a new issue brief including a chart of improper billing regulations organized by state, several model provider letter templates, including California-specific letters, all of the trainings we have presented on the topic, as well as resources from CMS on improper billing.

Improper billing of QMBs has been a persistent problem across the country that Justice in Aging and other advocates have been working to stop. We’ve worked with CMS to improve its provider education efforts and internal processes, and provided advocates with previous trainings and resources. We’ve made progress but more remains to be done.

That’s why we created this robust toolkit for you to use to help your clients and to share broadly with other advocates.

Medicaid Funding Caps Would Harm Older Americans

By | Health Care, ISSUE BRIEF, Medicaid, REPORTS | No Comments

Recent months have seen increased discussion of proposals to cap federal Medicaid spending. Under these proposals, the federal government would provide limited funding through either block grants or per capita payments to states, and states would have broad discretion to set their own Medicaid standards.

A new issue brief from Justice in Aging explains how these proposals would harm older Americans. The caps would result in a dramatic reduction in federal funding for Medicaid, and these crippling cuts would be exacerbated by the loss of longstanding federal protections. Potential consequences include loss of services, cutbacks in eligibility, unaffordable health care costs, and diminished quality of care.

The issue brief provides careful analysis of both the “cap” proposals and the protections of existing Medicaid law. Many of the proposals tout the “flexibility” of giving almost complete discretion to states. As the issue brief highlights, however, consumer protections in current Medicaid law are vital to older Americans’ health and financial security.

WEBINAR: Improper Billing of Dual Eligibles—an Update

By | WEBINAR | No Comments
When: Tuesday, February 7, 2017 at 11:00 a.m. PT/ 2:00 p.m. ET.

Improper billing occurs when hospitals, doctors, or other providers charge beneficiaries who have both Medicaid and Medicare (dual eligibles) for co-pays, co-insurance, and deductibles. Qualified Medicare Beneficiaries, including most dual eligibles, should never be charged for services covered under Medicaid or Medicare. This illegal practice stretches already thin budgets and often leads to disruptions in health care and fear of aggressive collection efforts.

This webinar, Improper Billing of Dual Eligibles—an Update, focused on new developments and tools to help advocates combat the persistent problem of improper billing of dual eligibles and Qualified Medicare Beneficiaries (QMBs). Federal law protects low income Medicare beneficiaries from paying co-insurance and co-pays, but ensuring that those protections work has been a challenge for advocates. Help is at hand.

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WEBINAR: Legal Basics: Elder Abuse

By | WEBINAR | No Comments

When: Tuesday, February 14 at 11:00 a.m. PT/ 2:00 p.m. ET.

The recent White House Legal Aid report highlighted a troubling finding: one in 10 older adults and close to 50% of people with dementia are victims of elder abuse. Legal and aging network services help communities prevent elder abuse and help victims of elder abuse access services and justice.

Lori Stiegel, a nationally recognized expert on older adults and elder abuse, presents a Legal Basics Webinar to help legal and aging network professionals prevent elder abuse. During this training, Lori provides a basic overview of legal protections, information attorneys and non-attorneys need to spot and report on elder abuse, and legal interventions to protect against elder abuse, neglect and exploitation.

Newer legal services attorneys, law students, aging and disability network professionals looking to understand the basic information about elder abuse are encouraged to attend.

Lori Stiegel, Senior Attorney, American Bar Association Commission on Law and Aging

This webinar took place on Tuesday, February 14 at 11:00 a.m. PT/ 2:00 p.m. ET.


Advocates Warn Congress of Dangerous Consequences of ACA Repeal and Delay for Seniors and People with Disabilities

By | PRESS RELEASE, Uncategorized | No Comments

OAKLAND – On January 13, 2017, the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center and 65 other organizations that represent older adults and people with disabilities wrote Congressional leadership expressing grave concern about repeal of the Affordable Care Act (ACA). In particular, the organizations urge that any legislation to repeal the ACA be rejected unless it is accompanied by a detailed replacement plan that provides American families with equal or improved access to high-quality, affordable health coverage.

“Repealing the ACA without an immediate replacement could cause 30 million Americans who rely on expanded Medicaid and the individual market to lose health coverage. Over 4.5 million people ages 55 to 64 could lose coverage and the share of uninsured people in this age group could double—from 8% to 19%,” the letter cautioned.

Center for Medicare Advocacy Executive Director Judith Stein stressed that ACA repeal would also harm Medicare and Medicaid. “The Affordable Care Act, Medicare and Medicaid are all intertwined. Repealing ACA will reduce access to health care in myriad ways, with repercussions for most families throughout the country. It’s a dangerous prescription.”

Justice in Aging’s Executive Director Kevin Prindiville underscored the impact of ACA repeal on the most vulnerable older adults living in poverty. “By weakening Medicare and Medicaid, repealing the ACA would have tremendous, negative consequence for the health of all of the older adults in our communities – but especially the millions who are living in or near poverty. Instead of repealing the ACA, Congress should be working to strengthen Medicare and Medicaid and make health and long term care more affordable and accessible for all seniors.”

Medicare Rights Center’s President Joe Baker warned of the negative consequences of ACA repeal on people with Medicare. “The rush to repeal and delay the Affordable Care Act will take our nation backwards. Before the health law, seniors went without needed medications when they fell into the donut hole and people with disabilities had no affordable coverage during their two-year wait for Medicare. People with Medicare and their families cannot afford to take these costly steps back.”

Read the full letter


The Center for Medicare Advocacy, Inc., established in 1986, is a national nonprofit, nonpartisan law organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain fair access to Medicare and quality health care. The Center is headquartered in Connecticut and Washington, DC with offices throughout the country.

Justice in Aging is a national non-profit legal advocacy organization that fights senior poverty through law. Formerly the National Senior Citizens Law Center, since 1972 we’ve worked for access to affordable health care and economic security for older adults with limited resources, focusing especially on populations that have traditionally lacked legal protection such as women, people of color, LGBT individuals, and people with limited English proficiency.

The Medicare Rights Center is a national, nonprofit consumer service organization that works to ensure access to affordable health care for older adults and people with disabilities through counseling and advocacy, educational programs and public policy initiatives.


WEBINAR: How ACA Repeal Would Hurt Seniors

By | WEBINAR | No Comments
When: Tuesday, January 17 11:00 a.m. PT/ 2:00 p.m. ET.

The Affordable Care Act (ACA) is under immediate threat in Congress. The consequences of repealing the ACA are far reaching, and would impact the entire health care system including Medicare and Medicaid. For older adults, these programs serve as a lifeline that insures access to critical medical care. Repeal of the ACA would jeopardize the care seniors receive every day by reducing coverage, and ending programs seniors rely on to remain in their homes and communities. The out-of-pocket costs seniors pay today for care would increase, straining already tight budgets.

This webinar, How ACA Repeal would Hurt Seniors, provided a summary of the impact an ACA repeal would have on low-income older adults, including how it would affect seniors who rely on Medicaid and Medicare. We also provided an update on the efforts Congress is taking to effectuate a repeal and what procedural steps are yet to come.

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Section 1557: Strengthening Civil Rights Protections in Health Care

By | Affordable Care Act, Health Care, ISSUE BRIEF, REPORTS | No Comments

So many health care protections are at risk in the months ahead, including Section 1557, the provision in the Affordable Care Act (ACA) that specifically applies civil rights protections to health care settings.

This ACA provision has already been targeted, as a nationwide preliminary injunction issued on December 31 by a Federal District Court in Texas prohibits the Department of Health and Human Services (HHS) from enforcing the provisions in the implementing regulations that pertain to transgender discrimination and discrimination based on termination of pregnancy. The temporary order leaves the rest of Section 1557 intact, although some in the new administration and the new Congress would like to go further, seeking to repeal Section 1557 as part of a broader ACA repeal effort.

Justice in Aging has prepared a brief summary of the extent to which the injunction is likely to impact programs that affect older adults.

Justice in Aging also created an issue brief that discusses how Section 1557 and the HHS implementing regulations affect programs that serve older adults. The brief looks at discrimination protections around language access for beneficiaries with limited English proficiency, sex and gender discrimination, disability discrimination and discrimination based on age and race, with examples of how those provisions could play out for older adults using the Medicare or Medicaid benefit.

WEBINAR: Oral Health Basics for Low-Income Older Adults

By | Uncategorized, WEBINAR | No Comments
When: Thursday, January 19, 2017 11:00 a.m. PT/ 2:00 p.m. ET

Low-income older adults have significant oral health needs. Unfortunately, they face serious obstacles to obtaining care in large part due to complex and limited health insurance options. This webinar, Oral Health Basics for Low-Income Older Adults, provides a summary of what dental coverage options are available to older adults, a summary of covered and non-covered benefits, how different coverage options work together, and other barriers older adults face in accessing dental care. The webinar also provides advocates and community-based providers the opportunity to share what their clients are experiencing. Read More

How Seniors Crushed by Old Student Loans Can Get Relief

By | IN THE NEWS | No Comments

Consumer Reports: How Seniors Crushed by Old Student Loans Can Get Relief (12/21/2016) Many seniors are being pushed into poverty due to old student loans. An increasing amount of seniors are having their Social Security income garnished by the government to pay off student debt. Justice in Aging’s Kate Lang says that “this is something that was not common till recently. The rising cost of higher education means that the debt itself is much larger and it’s much more difficult to pay it off over time. What’s really troubling is that there will be more and more people in this situation.” The number of seniors affected is expected to rise as baby boomers retire.