July 25, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

Auto-enrollment for ACA Consumers Proposed

The Department of Health and Human Services recently proposed a rule whereby those who signed up for insurance coverage through the Affordable Care Act’s State and Federal exchanges would be automatically re-enrolled for coverage in 2015.

Consumer research shows that most individuals won’t take action on their own and would therefore be likely to let policies lapse.  Automatic re-enrollment would avoid having people inadvertently fall out of coverage.

Insurers with a strong market-share in the first year of enrollment will likely support the rule, as it will reduce administrative tasks and make it easier to hold on to customers.  However, for those insurers who either struggled to gain customers or are entering the exchanges for the first time in 2015, the ruling could prove problematic.

HHS will be taking comments for 30 days before issuing a final rule.

Settlement Conference Facilitation Pilot Announced

The Centers for Medicare & Medicaid Services (CMS) has announced a new pilot program that will hopefully alleviate the backlog of Medicare Part B claims that have been appealed to the Administrative Law Judge level.  Settlement Conference Facilitation will be a pilot alternative dispute resolution process by which the appellant and CMS will be brought together to see if they can agree upon a settlement using a settlement conference facilitator.

The facilitator would use mediation principles in helping the two parties come to a settlement.  The facilitator, an employee of the Office of Medicare Hearings and Appeals, will not be a finder of fact and won’t make any determinations regarding the claimed issues, rather the facilitator’s purpose will be to help each side to see the strengths and weaknesses of their cases.

Settlement Conference Facilitation is only for appeals of Medicare Part B Qualified Independent Contractor decisions at this time.  Beneficiary appeals of QIC decisions are not eligible in this pillow as those appeals are being prioritized for a hearing before an administrative law judge.

For more information on what appeals are eligible and how to go about requesting Settlement Conference Facilitation, go to: http://www.hhs.gov/omha/settlement_conference_facilitation_pilot.html

DAMAGES: What am I entitled to when injured due to someone’s negligence?

This is a valid question that’s often on the minds of victims dealing with personal injury.  An accident and injury can often be a life-changing event that places a person’s life in turmoil overnight. In Nebraska, the goal of damages is to put the injured person in the same position as he or she would have been had there been no injury.  While nothing can put the injured party back to exactly where they were prior to the injury, special and general damages can certainly help.

There are two types of damages available—economic and non-economic.  The amount of damages is solely up to the fact finder (Judge or Jury) and the Judge or Jury may consider the types of damages elaborated on below:

Economic Damages (or Special Damages)

  1. The reasonable value of medical (hospital, nursing, and similar) care and supplies reasonably needed by and actually provided to the victim(and reasonably certain to be needed and provided in the future);
  2. The (wages, salary, profits, reasonable value of the working time, business) the plaintiff has lost because of his/her (inability, diminished ability) to work;
  3. The reasonable value of the (earning capacity, business or employment opportunities) the plaintiff is reasonably certain to lose in the future;
  4. Reasonable Funeral costs;
  5. The reasonable value of the plaintiff’s loss of the use of his/her property;
  6. The reasonable value of the cost of repair or replacement of personal property;
  7. The reasonable cost of obtaining substitute domestic services.

Non-Economic Damages (or General Damages)

  1. The reasonable monetary value of the physical pain and mental suffering (and emotional distress) the plaintiff has experienced (and is reasonably certain to experience in the future);
  2. The reasonable monetary value of the inconvenience the plaintiff has experienced (and is reasonably certain to experience in the future);
  3. The reasonable monetary value of loss of society and companionship suffered by the plaintiff and reasonably certain to be suffered in the future;
  4. The reasonable monetary value of any injury to plaintiff’s reputation;
  5. The reasonable monetary value of any humiliation the plaintiff has experienced (and is reasonably certain to experience in the future);
  6. The plaintiff’s (husband’s, wife’s) loss of consortium. Consortium means those things to which a person is entitled by reason of the marriage relationship. Includes affection, love, companionship, comfort, assistance, moral support, and the enjoyment of (sexual, conjugal) relations.

In the determination of economic and non-economic damages, the fact finder must consider the nature and extent of the injury, including whether the injury is temporary or permanent, and whether any resulting disability is partial or total.

See Nebraska Jury instructions on damages; NJI2d Civ. 4.00; General instruction on Damages in a Tort Action – Economic and Noneconomic Damages.

Are You Making Sure Your Electronic Devices Are Secure?

  Do you know where your work laptop is?  Do you get work e-mail on your smartphone?  Are both sufficiently password protected?  What about your business associates?  Do you believe they sufficiently protect all protected health information they have in their possession?  It would probably be a good idea to take another look at your electronic device security because the theft of laptops and other devices continues to be the leading cause of information breaches.

   The Health Insurance Portability and Accountability Act requires healthcare providers to disclose to the government whenever the protected health information of at least 500 peoples has been compromised.  According to a June 11, 2014, report by the Department of Health and Human Services Office of Civil Rights for the years 2011 and 2012, the theft of devices such as laptops accounts for nearly half of those reports.  Some of the largest breaches involved business associates, including a 2011 incident in which nearly 5 million people were affected.

   To read the full report, click on the following link:  http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/breachreport2011-2012.pdf

Claims for Unpaid Wages

Under the Nebraska Wage Payment and Collection Act an employee or former employee cannot bring a claim for unpaid earned wages until 30 days have passed from the missed regularly scheduled payday. If the employee is terminated or quits, her/his earned wages are not due until the next regularly scheduled payday. The counting period is not from when the person was fired or quit but rather from the next scheduled payday.

It is important to note that the claim is only for your hours worked. Wages include compensation for labor or services and fringe benefits such as vacation pay. Not included as a fringe benefit is sick leave. If an employer does not keep vacation pay and sick leave separate from one another and lumps everything together as paid time off (PTO), then all the earned PTO must be paid at the time of separation.

If the employee is paid by commission, the earned commission is not due until the employer receives payment from customer for the good or service which generated the commission. The employer must provide a separated employee with a periodic accounting of outstanding commissions until all commissions have be been paid or canceled by the customer. If the employer has been paid and the next regularly schedule pay period passes, the employee or former employee must wait 30 days to bring a claim for the unpaid commission.


Bill Provides Transition Support for Medicare Patients

Medicare beneficiaries may soon receive enhanced support benefits as they transition from one setting to another.

Titled the Medicare Transitional Care Act, a bill has been recently introduced which would provide appropriate follow-up care during transitions from hospitals to long-term care, home or other settings.  The bill includes a flexible benefit for support services such as assessment, medications management, meals and medical equipment.

It’s a well-known fact in the industry that poorly coordinated transitions are risky for patients and costly for the Medicare program.  One estimate puts the cost for 30-day hospital readmissions at $15 billion annually.

This bill would encourage collaborative team approaches that have proven successful in addressing gaps in patient care.

Light Therapy Treatment for Dementia Residents

Can adding particular kinds of light really soothe nursing home residents with dementia and improve their sleep and eating patterns? Recently published research findings certainly shed some light on that theory.

Fourteen nursing home residents with dementia were part of a study to answer that very question. The lights were put in their rooms for a period of four weeks, during which researchers used standardized tools to track sleep quality and duration, depression and agitation.  The investigators found that all significantly improved. Although subjective, the nursing staff also reported that the patients were eating better.

According to the principal author Mariana Figueiro, Ph.D., associate professor and Light and Health program director of the Lighting Research Center at Rensselaer Polytechnic Institute in Troy, NY, this is a simple, inexpensive, non-pharmacological treatment and the improvements in agitation and depression were very impressive.

The study used blue-white lights that were about 300 to 400 lux. According to government guidelines, this would be an appropriate light level for an office conference room. The lights had a color temperature of more than 9000 K—the range of a white LED bulb, according to information from Florida State University.

The light therapy works by acting on the body’s circadian responses (biological clock), the researchers stated.

Allowed Use of Reprocessed Medical Devices

The Centers for Medicare & Medicaid Services recently announced new guidelines concerning the use of certain types of reprocessed medical devices in nursing homes.

In the past, CMS guidelines limited nursing homes to the use of brand-new single-use medical devices, such as endoscopes or blood pressure cuffs.  According to a  memorandum issued last Friday, the agency has changed its interpretive guidance such that long-term care facilities may purchase used single-use devices that have been sterilized and repackaged through a party authorized by the Food and Drug Administration.

Nursing homes that purchase allowed reprocessed items will be required to provide documentation showing the third-party reprocessor is authorized by the FDA.  The use of reprocessed devices could lead to significant cost savings for providers.

Mississippi Case Highlights Issues of Resident Privacy

         In Mississippi, a man obtained access to the continuing care retirement community where a U.S. State Senator’s wife was being cared for due to dementia.  The man, Clayton Kelly, took an unauthorized photograph of the Senator’s wife.  He then used that photograph in a video that he used in his political blog to criticize the Senator.  Police are investigating how Kelly gained access to the facility, but Kelly’s wife claims that her husband had been given a visitor’s pass that allowed him onto the grounds and his attorney claims that the photograph was taken through an open door during regular visiting hours, and thus, Kelly did nothing wrong.  The whole situation has gained national attention because it involves a U.S. Senator in the middle of a primary campaign and the possibility that Kelly has some connection to the Senator’s main rival in that primary election.  However, there really is a lesson in all of this for nursing facilities.

         The Nursing Home Reform Act of 1987 provides basic rights for residents of nursing homes.  Residents have the right to privacy and confidentiality and they have the right to dignity, respect, and freedom.  Mr. Kelly most certainly invaded her privacy and in the context of his politically motivated video violated her right to dignity and respect.  There is no doubt in that.  But what about the facility involved in this incident?  A spokesman for the facility did state that they do have security protocols in place; they patrol the grounds, they have a checkpoint where anyone entering must check in at, and they have other security measures in place. 

         Numerous examples like this are becoming more commonplace.  Is there anything more a facility can do to protect their residents in circumstances such as these?  Given we live in an age where everyone has a cell phone and almost all of them have a camera, it can be quite daunting to consider the options.  To ensure complete privacy, a facility would have to require visitors to hand over such personal property upon entering a facility.  However, short of that, facilities can and should consider policies prohibiting possession of cameras or other recording devices, by staff and prominently warning the visiting public that unauthorized photographs or videos of residents (other than family members) is forbidden.  Staff should be instructed to kindly remind visitors of these privacy rules and to report non-compliance promptly to management.

C. Diff Vaccine Nearly a Reality

A promising Clostridium difficile (C. diff) vaccine performed well in initial tests and now has moved into a large Phase III clinical program called Cdiffense to evaluate the safety and efficacy of the vaccine for the prevention of C. diff infection.

The hopes have been that this antibiotic-resistant infection can be prevented in long-term care facilities and other settings where it has become a deadly scourge.

The first two phases of vaccine testing involved about 650 volunteers between 40 and 75 years old, who were at risk of C. diff due to impending long-term care admission or hospitalization.  Phase I included high-dose and low-dose versions and the high-dose formulation moved on to the second phase. Phase II participants responded best when vaccinated on day 0, 7 and 30 of the trial, with elderly recipients experiencing particularly strong immune responses. This trial saw significant increase in antibody production against C. diff toxins, across all dosing schedules and volunteer ages

The testing in Phase III, which began in August 2013 could involve 200 sites in 17 countries. The vaccine so far has proved safe, with the only reactions being mild and of short duration.  The C. diff vaccine is meant to work in the same way as tetanus or whooping cough vaccines, by stimulating the immune system to fight C. diff when it appears.


Client Testimonial:

I don’t know how to thank you for your quick, clear and valued reply. I was worried that it was unreasonable of me to put all of this on your lap during the eleventh hour of the Agreement’s discussions – THANK YOU! Your reply was well-structured and succinct but also simple enough that even us lay-folks can see the legal linings. I’m struggling to find the right words to completely convey my satisfaction. You have my profound “appreciation” Laura!”

Jon, a Knudsen client