Judge Allows Medicare Observation Status Appeal Rights Case to Proceed

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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
vbarrington@justiceinaging.org

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

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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

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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.

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Justice in Aging and Center for Consumer Engagement in Health Innovation Offer Recommendations to Improve Non-Emergency Medical Transport for Older Adults

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November 3, 2016 (Oakland, CA) – A new report released today by the Center for Consumer Engagement in Health Innovation (the Center) and Justice in Aging outlines the importance of Non-Emergency Medical Transportation Services (NEMT) for older adults and people with disabilities, details the challenges faced by users and offers a series of recommendations based on promising state practices. The report, Medicaid Non-Emergency Medical Transportation: An Overlooked Lifeline for Older Adults, can be accessed at Justice in Aging and the Center.

Across the country, 7.1 million Americans rely on NEMT services to get to medical appointments. Yet, every year, an estimated 3.6 million Americans miss or delay health care because of difficulty accessing these critical services. NEMT is an important Medicaid benefit for the people who rely on it to visit their doctors, receive treatment for chronic conditions and travel to settings such as adult day health care. Considering that NEMT represents less than 1 percent of total state and federal Medicaid expenditures and has the potential to prevent much more costly medical care, it provides exceptional value for states.

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Settlement in Class Action against Social Security for Basing Disability Decisions on Disqualified Doctor’s Reports

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Oakland, CA—A settlement has been reached on behalf of approximately 6,500 California residents, most of them in the San Francisco Bay Area. The settlement will ensure that class members have the opportunity to have disability claims that were denied or discontinued reevaluated.  If approved by the court, it will be the first-ever settlement against the Social Security Administration (SSA) to provide a large group of people with a remedy for its reliance on medical reports from a disqualified physician.

Lead Plaintiff Kevin Hart was devastated when he received notice from the Social Security Administration that he was no longer disabled after being examined by the doctor in question. “He didn’t even know me, he didn’t even look at me,” said Hart, describing the cursory examination he received that lasted less than 10 minutes and failed to note that he required a cane to walk.

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Justice in Aging Launches New Bay Area Project with Two New Attorneys

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Oakland, CA – Justice in Aging is pleased to announce a new outreach, education and advocacy project in the San Francisco Bay Area that will improve access to Supplemental Security Income (SSI) and In Home Supportive Services (IHSS) for low-income seniors residing in Alameda and Contra Costa Counties.

SSI and IHSS are programs that provide an important lifeline to low-income older adults. SSI provides vital basic income support to extremely low-income older adults and people with disabilities to pay for food, shelter, and other necessities. In Alameda County 52,820 people rely on SSI, and Contra Costa County is home to 26,658 SSI recipients. IHSS is a life changing and life sustaining program for over 25,000 people in Alameda and Contra Costa Counties. The program provides personal care services to seniors and people with disabilities who need help with activities of daily living in order to remain at home and in their communities.

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Justice in Aging Welcomes Tracey Gronniger to Direct Economic Security Team

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WASHINGTON, DC.– Justice in Aging is pleased to welcome Tracey Gronniger to its Washington, DC office as Directing Attorney of the Economic Security Team. Justice in Aging (formerly the National Senior Citizens Law Center), which also has offices in Los Angeles, and Oakland, CA, is a national legal advocacy organization that uses the power of law to fight senior poverty.

Tracey joins Justice in Aging after serving as senior staff attorney at the Federal Trade Commission for ten years. She worked in the Bureau of Consumer Protection where she litigated a variety of cases to halt fraudulent and deceptive marketing practices, including actions to stop Medicare fraud schemes, government grant scams, and phony business opportunities. She also coordinated the Bureau’s Legal Services Collaboration and Every Community Initiative, which seeks to ensure that the agency meets the consumer protection needs of undeserved and at-risk consumers, including older Americans. Prior to joining the FTC Tracey served as an Associate at the law firm of Steptoe & Johnson in Washington, DC.

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Lawsuit Paves Way for Improvements in SSI Overpayment Collection

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Oakland, CA—As a result, in part, of a lawsuit filed by Justice in Aging, GLBTQ Legal Advocates & Defenders (GLAD) and Foley Hoag LLP on behalf of Plaintiffs Hugh Held and Kelley Richardson-Wright and a proposed nationwide class, the Social Security Administration (SSA) has issued a new policy that provides a significant win for individuals receiving Supplemental Security Income (SSI) benefits who are married to someone of the same sex but whose marriages were not recognized by SSA when they should have been.

SSI is a benefits program that provides for basic necessities for very low income people over 65 and people with disabilities. SSI recipients married to someone of the same sex were being asked to pay back “overpayments” caused by SSA’s failure to recognize their marriages. Under SSA’s new policy, they should now be able to receive a waiver, or forgiveness, of those overpayments even, in most cases, without having to formally apply for relief.

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National Academy of Social Insurance Welcomes Attorney Kate Lang as a Member

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Lang Joins Nation’s Top Professionals Working to Advance Public Policy Solutions to Challenges Facing Workers and Families

WASHINGTON, DC – Justice in Aging is proud to announce that the National Academy of Social Insurance (NASI) has welcomed Senior Staff Attorney Kate Lang as a member. Membership is offered only to those who have demonstrated a sustained interest in social insurance as a tool for addressing economic insecurity; have distinguished themselves by improving the quality of research, teaching, policy making, administration or financing of social insurance systems; and are committed to furthering public education, developing new leaders, promoting research, and providing forums for discussion among experts, stakeholders, policy makers, and administrators.

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