High court hears Medicaid dispute
Counties sue state over how the cost is shared

By DANIEL BARRICK Monitor staff
________________________________________
November 13, 2008 - 12:00 am

In a case that both sides say could have a big impact on taxpayers, the Supreme Court heard arguments yesterday in a lawsuit brought against the state by the New Hampshire Association of Counties over the way Medicaid bills are shared.
The state’s 10 counties sued the state over a 2007 law that required county governments to cover what had previously been the state’s share of Medicaid expenses for nursing home and home-based-care patients. Previously, the state and counties split evenly the 50 percent of Medicaid costs that are not covered by the federal government.
A change in the law last year requires the individual counties to cover all of those nonfederal costs; in exchange, the state agreed to cover the counties’ share of other health programs. Proponents of the deal say it simplified what had been a burdensome and complicated administrative system.
But representatives for the counties say they’re getting the worse end of the deal, since Medicaid and nursing home expenses are expected to increase far more in coming years than other health programs. The counties also argue that the shift in responsibilities was forced on them by lawmakers looking to cut their expenses - and that will mean big increases in county taxes in the near future.
“The question is, who gets to decide whether local property taxes should be used to fund state-mandated programs?” Robert Dunn, a lawyer representing the New Hampshire Association of Counties, told the justices yesterday.
The details of the case may seem obscure and technical, but the underlying questions are important, reflecting both the challenges posed by New Hampshire’s aging population and the ongoing tension between the state and smaller municipalities over what the state’s financial responsibilities are.
Demographers say New Hampshire’s population is aging at a rapid rate that will put increasing pressure on the state’s health care costs, especially programs such as Medicaid, which provides health coverage for many elderly and disabled residents.
The case also reflects long-standing fights between state and local officials over issues such as education funding and health care. Cities, towns and school districts say state officials are increasingly “downshifting” their share of those expenses to the smaller municipalities.
Those municipalities, in turn, have no way to cover those additional costs other than increasing local property taxes.
“That’s the reason we’re nearly in a local taxpayer revolt,” said Ted Comstock, executive director of the New Hampshire School Boards Association.
The counties say the new Medicaid arrangement is a violation of the state constitution’s provision against unfunded mandates. That provision forbids the state from assigning additional costs to municipalities without the consent of that local body.
Andrew Livernois, the lawyer representing the state before the Supreme Court yesterday, told the justices that the new Medicaid arrangement was not an unfunded mandate since the counties have paid a portion of Medicaid costs for several years - the change simply increased the counties’ share.
“The increase of the dollar amount alone does not constitute a new responsibility,” Livernois said.
Sen. Kathleen Sgambati, a Tilton Democrat who helped write last year’s law that changed the Medicaid sharing arrangement, said the Legislature added a provision to cap the counties’ expenses at their current level for the first two years.
“The intent was to ensure the counties that this was not a cost shift,” Sgambati said yesterday. “The state assumes all the risk in this situation.”

If the justices rule in favor of the counties and determine the new sharing system to be unconstitutional, Sgambati said, it could add millions of dollars in expenses to the state budget over the next two years.
Earlier this year, a Merrimack County Superior Court judge ruled against the counties, saying the new Medicaid arrangement was not an unfunded mandate, because the counties had not yet seen any additional costs. Judge Carol Ann Conboy did say the counties could renew their claim in a few years if they did see Medicaid costs increase.
But Supreme Court justices appeared skeptical of the state’s case yesterday, repeatedly questioning claims that the change in Medicaid obligations was not an expansion of the counties’ financial burden.
“This is all about dollars and cents,” said Justice James Duggan. “It’s all about someone being forced to pay something.”

Computerized caregivers may help seniors

By Bob Moosthe / Dallas Morning News | Thursday, November 6, 2008 | http://www.bostonherald.com | Lifestyle

DALLAS - Someday soon, frail older adults may not need to move into nursing homes because they’ll have technological wonders to keep an eye on them.
Like smart pets that don’t require feeding, robots will scoot from room to room to wake homeowners in the morning, remind them to eat and send for help if someone falls.
Sensors embedded throughout seniors’ homes will detect when the residents have sleepless nights or forget to take their medication. Web-based computer software will notify caregivers.
“This is the future of aging,” said Fillia Makedon, a professor of computer science and engineering at the University of Texas at Arlington. “Technology will let people grow old at home.”
With support from the National Science Foundation and others, Makedon has created the Heracleia Human-Centered Computing Laboratory at UTA, where she, other faculty members and their students are designing technology that will allow tomorrow’s seniors to remain independent longer than previous generations.
The research facility, and a handful of similar labs nationwide, will be the springboard for what experts predict will be an exploding assistive technology industry within a decade.
The UTA lab houses a make-believe one-bedroom apartment equipped with high-tech cameras, motion sensors and robots, and is surrounded by computers.
Professors and students measure movement within the furnished apartment and feed the data into computers that will alert them to measurements outside a normal range.
Once the technology is perfected, caregivers will be able to sign on to a secure Web site and check how well a senior is recovering from surgery or responding to a new prescription, Makedon said.
“The goal is to create a safer environment without unnecessarily invading someone’s privacy,” Makedon said. “Caregivers will turn on the cameras only if they suspect something is wrong.”
Many experts hope assistive technology will help ease the strain the aging population will place on the nation’s long-term care system.
There aren’t enough trained caregivers or facilities to accommodate the expected doubling of older adults in the next 25 years, said Mary Jane Koren, an assistant vice president at the Commonwealth Fund, a private foundation that studies health-care issues.
And Medicaid, the federal-state program that pays for most long-term care after people deplete their personal resources, won’t be able to cover boomers’ costs without some form of relief, she said.
Fears that seniors will be wary of such technology are unfounded, experts say. The AARP Foundation has found that nine of 10 older adults will agree to remote monitoring if it keeps them independent.
Article URL: http://www.bostonherald.com/entertainment/lifestyle/view.bg?articleid=1130300

Federal Government Recovers $1.34 Billion Under False Claims Act

From a Story in the American Assocation of Justice
Marcia Coyle
11-12-2008
The federal government has secured $1.34 billion in settlements and judgments in the fiscal year ending on Sept. 30, 2008, pursuing allegations of fraud under the federal False Claims Act, with the largest share coming from health care lawsuits.
The fiscal year recoveries bring the amount of total recoveries since 1986 amendments to the act to more than $21 billion.
The Department of Justice reported that almost 78 percent of this year’s recoveries are associated with suits initiated by private citizens (known as “relators”) under the False Claims Act’s qui tam provisions. These provisions authorize relators to file suit on behalf of the United States against those who have falsely or fraudulently claimed federal funds. Such cases, according to the department, run the gamut of federally funded programs from Medicare and Medicaid to defense procurement contracts, disaster assistance loans and agricultural subsidies. Persons who knowingly make false claims for federal funds are liable for three times the government’s loss plus a civil penalty of $5,500 to $11,000 for each claim.
Relators recover 15 to 25 percent of the proceeds of a successful suit if the United States intervenes in the qui tam action, and up to 30 percent if the government declines and the relator pursues the action alone. In fiscal year 2008, relators were awarded $198 million. (This figure does not include relator shares awarded after Sept. 30, 2008.)
Health care continued to account for the lion’s share of fraud settlements and judgments — $1.12 billion. This number includes both qui tam claims and those initiated by the United States. The Department of Health and Human Services reaped the biggest recoveries, largely attributable to its Medicare program and the federal/state Medicaid program that funds health care for the needy. Recoveries were also made by the Office of Personnel Management which administers the Federal Employees Health Benefits Program, the Department of Defense for its TRICARE insurance program, the Department of Veterans Affairs and others.
The largest health care recoveries came from pharmaceutical companies and related entities. Settlements with Cephalon Inc.; Merck & Co.; and CVS Caremark Corp. accounted for more than $640 million. In addition to federal recoveries, these pharmaceutical fraud cases returned $430 million to state Medicaid programs.
The department also collected $133 million in defense procurement fraud. Defense contract recoveries included a $53 million settlement with Pratt & Whitney, a division of United Technologies Corp., and PCC Airfoils LLC, a subsidiary of Precision Castparts Corp. The settlement resolved allegations that Pratt & Whitney and PCC Airfoils knowingly submitted false claims to the Air Force for defective turbine blades sold to the government to retrofit the F100-PW-220 engines in F-16 and F-15 aircraft. This case was pursued as part of a National Procurement Fraud initiative, launched in October 2006, to promote the early detection, identification, prevention and prosecution of procurement fraud.
Assistant Attorney General Gregory G. Katsas paid tribute to Sen. Charles Grassley , R- Iowa, and Rep. Howard L. Berman, D-Calif., who sponsored the 1986 amendments to the False Claims Act that strengthened the government’s primary weapon to fight government fraud. “Without this important legislation strengthening the Act and, in particular, the qui tam provisions which encourage private citizens to uncover government fraud, such recoveries would not have been possible,” he said.

PURPOSE OF THE HCBS WAIVER PROGRAM

The Medicaid Home and Community-Based Services (HCBS) waiver program is authorized in §1915(c) of the Social Security Act. The program permits a State to furnish an array of home and community-based
services that assist Medicaid beneficiaries to live in the community and avoid institutionalization. The State has broad discretion to design its waiver program to address the needs of the waiver’s target population. Waiver services complement and/or supplement the services that are available to participants through the Medicaid State plan and other federal, state and local public programs as well as the supports that families and communities provide.

The Centers for Medicare & Medicaid Services (CMS) recognizes that the design and operational features of a waiver program will vary depending on the specific needs of the target population, the resources available to the State, service delivery system structure, State goals and objectives, and other factors. A State has the latitude to design a waiver program that is cost-effective and employs a variety of service delivery approaches, including participant direction of services.

The waiver application is based on the HCBS Quality Framework. The Framework focuses on seven broad, participant-centered desired outcomes for the delivery of waiver services, including assuring participant health and welfare:
• Participant Access: Individuals have access to home and community-based services and supports in their communities.
• Participant-Centered Service Planning and Delivery: Services and supports are planned and effectively implemented in accordance with each participant’s unique needs, expressed preferences and decisions concerning his/her life in the community.
• Provider Capacity and Capabilities: There are sufficient HCBS providers and they possess and demonstrate the capability to effectively serve participants.
• Participant Safeguards: Participants are safe and secure in their homes and communities, taking into account their informed and expressed choices.
• Participant Rights and Responsibilities: Participants receive support to exercise their rights and in accepting personal responsibilities.
• Participant Outcomes and Satisfaction: Participants are satisfied with their services and achieve desired outcomes.
• System Performance: The system supports participants efficiently and effectively and constantly strives to improve quality.

For More Information Regarding the HCBS Waiver please see:
http://www.dhs.state.mn.us/main/groups/aging/documents/pub/dhs16_143051.pdf