Adoption of retrospective Medicare maximization billing practices by state Medicaid home care programs

Home care services funded by Medicare and Medicaid grew rapidly throughout most of the 1990s. During this period some state Medicaid programs transferred costs for home care claims to the Medicare program to reduce their liability and increase beneficiary access to Medicare coverage. This article reports the findings of the first national study of these Medicare maximization billing practices for home care services. Primary data were collected to determine which states conduct retrospective Medicare billing practices and the amounts recovered from Medicare. Our analysis indicates that seven states recovered as much as dollar 265 million from Medicare in state and federal dollars during the 1990s. Ratios of recovered expenditures-to-costs incurred for retrospective billing practices conducted in Connecticut, New York, and Massachusetts are between 5:1 and 7:1. While retrospective billing practices may aid states in reducing Medicaid outlays and potentially help dual Medicare beneficiaries gain coverage for their home care claims, they increase Medicare expenditures for home care at a time of concern for the long-term financial viability of Medicare and illustrate the need for reforming our national long-term care financing policy.     

Medicaid myths: trends in Medicaid expenditures and the prospects for reform

Medicaid expenditures, which had reached more than +32 billion by 1981, have grown substantially throughout the program's history. As a result, the conventional wisdom is that Medicaid expenditures represent a significant public-policy problem. Using other measures, however, it can be shown that the program is much less of a problem than it appears to be. By 1981, spending for Medicaid represented only 12.7 percent of total state spending and had contributed only 14.2 percent to the overall growth in state expenditures since 1965. Moreover, considering only the funds which states raise from in-state sources, the median share of state budgets accounted for by Medicaid was just 5.6 percent, and only 7 states spent as much as 9 percent of their own money on the program. These figures suggest that the marginal reductions in Medicaid expenditures which would result from typical program changes are likely to be so small that rational state officials might be unwilling to incur the political opposition of powerful provider groups or the resistance of large state bureaucracies by proposing substantial reforms. The major exceptions are the few states with very large programs where even small proportional savings would amount to millions of dollars. We conclude that, given its present federal-state form and the current distribution of expenditures, it is unlikely that major reforms will be enacted because the stakes are too small for most states and the federal interest is too diffused.     

Who needs Daddy Warbucks: The Kinship Guardianship Assistance Program should apply to children of those who surrender their parental rights

Families who find themselves in the middle of child protective proceedings have three possible outcomes: (1) the family can reunify; (2) parents voluntarily surrender their parental rights; or (3) the parents have their rights terminated. While it seems we should support children in the second and third scenarios equally, having funding sources such as the Kinship Guardianship Assistance Program (KinGAP) only available to children of parents whose rights are terminated, does the opposite. This Note proposes amending the eligibility requirements of KinGAP to include children of parents who surrender their parental rights which would encourage positive safe placements for children.     

Who should pay for bad genes?

Parents have long been able to influence the genetic composition of their children through their choice of a reproductive partner, if only very approximately. They are, however, increasingly able to determine the genetic make-up of their children in other, more precise ways, such as by selecting a particular gamete or embryo or by genetically modifying an embryo prior to artificial implantation. This Article discusses parents' obligations to their children and other members of the community stemming from their children's genes. In a just state, it argues, parents would be responsible for redressing any genetic disadvantage their children suffer as a result of parents' voluntary actions. Within the context of a liberal egalitarian account of distributive justice, this responsibility might most fairly be discharged through a compulsory insurance plan that provides compensation to genetically disadvantaged children when they might have had non-disadvantaged children instead would in some circumstances incur greater liability, because they could not fairly push the cost of their choices off on other members of the insurance pool. The Article also asks whether parents wrong a child by allowing it to be born with a genetic impairment when, had they taken steps to remove the impairment, the unimpaired child they had would have been a different person from the genetically disadvantaged child because the better-off child's capacities and experiences differed considerably from those that the disadvantaged child would have had. Contrary to many people's moral intuitions, the Article argues that parents do not wrong such a child. Nevertheless, parents remain morally obligated to bear any added costs occasioned by the child's impairment. Any other approach would allow them unjustly to shift the burden of their choices to other parents. Finally, the Article takes up the much debated question of whether parents harm a child by allowing it to be born with a life not worth living when they could have prevented its birth. It suggests that the answer to this question should be irrelevant to parents' legal liability. Acting on behalf of the parental insurance pool, the state may nonetheless adopt a variety of measures to help potential parents avoid giving birth to such children, which one can assume virtually all would prefer.     

Forgotten Children of Immigration and Family Law: How The Absence of Legal Aid Affects Children in the United States

The absence of government‐appointed legal counsel in immigration proceedings adversely affects large numbers of children in the United States. Children born in the United States to parents without citizenship status (U.S.‐born children of noncitizen parents or UCNP) are harmed by a parent's detention and removal. Unaccompanied alien children (UAC) who have entered the country without legal status are adversely affected by their own detention and removal. The possibility of obtaining relief from removal is drastically diminished by the lack of legal representation. Currently UAC and immigrant parents are not entitled to court‐appointed attorneys. Any meaningful change in immigration law, such as a federal statutory amendment to provide UAC and immigrant parents with government‐appointed counsel is unlikely due to the present political dissension in Congress regarding this issue. Because UAC and immigrant parents are not entitled to government‐funded legal representation, a pro bono legal service system has developed, but is unable to meet the present need adequately. For immigrant parents, this Note proposes the adoption of a statute to allow the appointment of court liaisons in family court proceedings. The court liaison is a nonattorney who is familiar with the processes of the family court and ensures that immigrant parents are fully informed regarding all pertinent family court proceedings. For UAC, this Note proposes an amendment to the William Wilberforce Trafficking Victims Protection Reauthorization Act to mandate the appointment of a child advocate to all UAC. The child advocate is not a lawyer, but works with the UAC's attorney to provide the child with legal representation and advocacy.

Key Points for the Family Court Community:
• UCNP confront the loss of parents to detention and removal. Children are condemned to limbo, torn between absent biological parents and placement in foster care.
• The recent surge in the number of UAC who enter the United States by crossing the border from Mexico has been described as a humanitarian crisis. These children often remain alone without legal protection, vulnerable to detention and removal.
• Ideally, UAC and the immigrant parents would be provided with government‐funded legal representation in immigration proceedings. In the absence of the federal statutory reform necessary to make that a reality, state statutory reform to allow for the provision of court liaison programs for immigrant parents and federal statutory reform to allow the appointment of child advocates for UAC can begin to offer children and families needed legal support and advocacy.

     

Medicaid rationing in Oregon: political wolf in a philosopher's sheepskin

Although the details of the proposal have shifted since it was first described, the Oregon Medicaid waiver has had one consistent feature: it will reduce benefits to AFDC mothers and children who are currently covered by Medicaid in that state, in the hopes of increasing coverage for other individuals who are now uninsured. Because of the adverse consequences for the AFDC population, there should be strong evidence supporting the purported benefits of the proposal before proceeding with the waiver. One of the most intriguing aspects of the waiver proposal is the claim that the money currently being spent on AFDC beneficiaries could be redistributed to expand coverage to a substantial number of the uninsured. The concept is that far more people could receive the most valuable services if those now being served gave up their coverage of the least valuable services. Other purported benefits of the waiver include enhanced citizen participation in decisionmaking, cost-savings, and improved payment levels and delivery arrangements. Remarkably, this analysis of the proposal reveals that the waiver is likely to achieve none of its stated objectives, and instead will have adverse consequences not identified by its proponents. What the proposal would do is to insulate politicians from visible responsibility for limiting benefits for AFDC children and adults. Finally, the proposal undermines 25 years of Medicaid as an entitlement program. As such, it would establish as a social ethic the principle that the poor can be relegated to inadequate care. Such an extreme measure is not justified by the fiscal situation in Oregon, which is not extraordinarily poor or overtaxed, and does not have a particularly generous or unusually expensive Medicaid program.     

Breaking The Cycle Of Intergenerational Child Maltreatment: A Case For Active Efforts For Dependent Minor Parents And Their Children In State Custody

Dependent minor parents placed in foster care with their children often face significant hurdles. These parents are responsible to make caregiving decisions for their children, while they themselves fall under the caregiving responsibility of the state child welfare system. As such, dependent minor parents live in a “twilight zone” – they hold full parental rights, but limited rights as teenagers. For a number of reasons, the children of minor parents in foster care often come into state custody. When two generations are in foster care at the same time, states must balance the safety and best interests of the children with the rights of minor parents to care for their own children. Currently, the state child welfare system is only required to provide “reasonable efforts” to reunify parents with children when they have been removed from their care for abuse, neglect, or dependency. However, dependent minor parents in state custody often require more supportive services in order to successfully reunify with their children than in a typical child welfare case. This article places the circumstance just described in the context of dependent minor parents’ constitutionally protected rights, and advocates for a higher standard which would require states to provide “active efforts” to protect and preserve these young families.     

Revisiting the legal standards that govern requests to sterilize profoundly incompetent children: in light of the "Ashley Treatment," is a new standard appropriate?

This Note discusses the recent controversy surrounding a six-year-old girl named Ashley, whose parents chose to purposefully stunt her growth and remove her reproductive organs for nonmedical reasons. A federal investigation determined that Ashley's rights had been violated because doctors performed the procedure, now referred to as the "Ashley Treatment," without first obtaining a court order. However, the investigation did not make any conclusions regarding whether the "Ashley Treatment" could present a legally permissible treatment option in the future. After discussing the constitutional rights that the "Ashley Treatment" implicates and the current legal standards in place, this Note examines how courts have applied these legal standards to cases involving extreme requests. Drawing upon legal commentators, this Note concludes that a court could approve a request for the "Ashley Treatment" in appropriate and limited cases where the parents have presented clear and convincing evidence before a court that the benefits that the "Ashley Treatment" would provide to the child and her family outweigh the risks associated with the procedure. This Note argues that those benefits may include extrinsic considerations, but courts should remain cautious when considering such evidence and be sure that the evidence as a whole supports their conclusions.     

THE FOSTER CARE OMBUDSMAN: APPLYING AN INTERNATIONAL CONCEPT TO HELP PREVENT INSTITUTIONAL ABUSE OF AMERICA'S FOSTER YOUTH

Children today are often abused while in foster care, undermining the theoretical goal of the modern foster care system: to create a temporary, safe, homelike setting to protect and nurture children who are unable to live with their biological parents due to various reasons such as abuse, neglect, or abandonment. Often this abuse is worse than the type for which they were removed from their parents’ care in the first place. First examining the reasons why this complex problem exists, this Note recommends an internationally based, innovative concept as a partial solution: the foster care ombudsman. This Note explains the concept of an ombudsman and demonstrates how it can be particularly helpful to foster children, highlighting existing child welfare ombudsman offices in California, Rhode Island, and New Jersey, as well as international approaches. It also illustrates how a foster care ombudsman can complement class action litigation of foster care abuse claims.     

ARE WE REALLY LOOKING OUT FOR THE BEST INTERESTS OF THE CHILD? APPLYING THE NEW ZEALAND MODEL OF FAMILY GROUP CONFERENCES TO CASES OF CHILD NEGLECT IN THE UNITED STATES

This Note advocates for state laws to be amended to implement family group conferencing (FGC) as the first step in cases of alleged child neglect. FGC was developed in New Zealand nearly twenty years ago and have since become a realistic method of balancing the best interests of the children, families, agencies, courts, and communities involved in the child welfare system. A FGC is a meeting among family members and professionals that is conducted in order to develop a plan for a child who is the victim of neglect. FGC places the family at the center of the welfare proceedings and empowers them to reach a solution without having to resort to the often lengthy and expensive adversarial court system. If FGC is incorporated into the child welfare systems throughout the United States, communication between the parents, social services, and the courts could increase, helping families adequately address the problem of neglect and getting the children out of the child welfare system quickly and more efficiently.     

Medicaid and Title IV-E programs; revision to the definition of an unemployed parent--Administration for Children and Families (ACF) and HCFA. Final rule with comment period

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) transformed the nation's welfare system into one that requires work in exchange for time-limited assistance. The law eliminated the Aid to Families with Dependent Children (AFDC) program and replaced it with the Temporary Assistance for Needy Families (TANF) program. The law provides States flexibility to design their TANF programs in ways that strengthen families and promote work, responsibility, and self-sufficiency while holding them accountable for results. Many States are using this flexibility to provide welfare to work assistance to two parent families, which was more difficult to do under the old welfare rules. However, pre-existing regulations regarding the definition of "unemployed parent" prevent some States from providing intact families with health insurance to help them stay employed. This rule will eliminate this vestige of the old welfare system in order to promote work, strengthen families, and simplify State program administration. In general under PRWORA, States must ensure that families who would have qualified for Medicaid health benefits under the prior welfare law are still eligible. While under the previous law receipt of AFDC qualified families for Medicaid, the new statute does not tie receipt of TANF to Medicaid. Instead, subject to some exceptions, Medicaid eligibility for families and children now depends upon whether a family would have qualified for AFDC under the rules in effect on July 16, 1996. Similarly, Federal foster care eligibility depends on whether the child would have qualified for AFDC under the rules in effect on July 16, 1996. In order for a family to qualify for assistance under the pre-PRWORA AFDC rules, its child had to be deprived of parental support or care due to the death, absence, incapacity, or unemployment of a parent. Two parent families generally qualified only under the "unemployment" criterion which was narrowly defined in the AFDC regulations. In this final rule with comment, we are amending these regulations to provide States with additional flexibility to provide Medicaid coverage to two parent families, facilitate coordination among the TANF, Medicaid and foster care programs, increase incentives for fulltime work, and allow States to eliminate inequitable rules that are a disincentive to family unity.     

The Chat Room Moderator: Creating a Duty for Parents to Control Their Cyberbully

The advent of new technologies allowing people to communicate via the Internet has opened many windows to social interaction. At the same time, it has shifted the focus of child harassment from the playground to the computer. Instead of face‐to‐face bullying, children are now being bullied on the Internet, in a phenomenon known as “cyberbullying.” Cyberbullying is widespread, affecting generally twenty‐five percent of the child population in the United States. It is also more dangerous, as a child can be bullied at any time in the supposed comfort of his/her own home. To combat this behavior, many states have passed measures to ban or criminalize cyberbullying in school‐related settings. Nevertheless, children and adolescents continue to cyberbully their peers. Furthermore, most of these statutes do not address cyberbullying that occurs outside school or from a child's own home. Thus, this Note proposes that cyberbullying can be better combated by placing responsibility on parents to reasonably control their children in cases of cyberbullying. Based on the recently enacted ‘Cyber‐safety Act” from the Canadian Province of Nova Scotia and Restatement of Torts § 316, this Note proposes (1) placing tort responsibility on parents who know that their child is a cyberbully and do nothing about it and (2) allowing parents to avoid liability when their child truly cannot be controlled.

Key Points for the Family Court Community
• Cyberbullying is a major problem that must be addressed beyond the schoolyard.
• The law may provide recourse for the parents of a cyberbullying victim and can hold the parents of a cyberbully responsible.
• The Nova Scotia Cyber‐safety Act is a good model for holding parents liable for their child's acts because it balances the desire to end cyberbullying and the understanding that some minors are uncontrollable.

     

MANDATORY VISITATION

The term visitation rights connotes that noncutodial parents have the discretion, not the responsibility, to visit their children. This article examines the assertion that visitation rights should instead be viewed as an obligation owed by noncustodial parents to their children. Excluding circumstances in which visitation would be injurious to a child, the expectation of visitation should be enforced by the courts.     

STATE CHILD EMOTIONAL ABUSE LAWS: THEIR FAILURE TO PROTECT CHILDREN WITH GENDER IDENTITY DISORDER

Emotional abuse of children with Gender Identity Disorder by parents is very difficult to identify and prevent. State investigators of abuse and neglect often have a hard time determining if the reasons for mental illness and psychological harm in children are due to the actions of their parents, or if they stem from other sources. Once identified, it becomes even harder to prove in court for purposes of ordering services or removing the child from the home if the abuse is severe enough. With children who are gender non‐conforming, this task becomes exponentially more difficult due to the low prevalence rate, discrimination, stereotypes, and a parent's right to bring up their child as they choose. These youth face discrimination and violence in school, work, their communities, and also within their own families. Emotional abuse statutes are too vague to protect youth who are gender non‐conforming. The vague and unclear laws lead to inconsistency in the application of the law and lack of protection of the children because judges and investigators are not aware of how parent's actions harms youth with gender identity disorder. Therefore, states should adopt the model statute within this Note which defines specific actions by parents which would not qualify as abuse when involving gender conforming youth but qualifies as abuse for children with gender identity disorder. Many states already have statutes which define physical abuse, sexual abuse and abandonment by specific actions by parents towards their children. This proposal will enable both the state and the judges to properly identify victims with gender identity disorder of emotional abuse and provide for their protection.     

Rights,responsibilities and regulation – the three Rs of education: a consideration of the state's control over parental choice in education

Education is both a right and a responsibility. International instruments such as the International covenant on civil and political rights and the International convention on the rights of the child affirm the right of all children to education. This right is spelt out in the education legislation of all states and territories in Australia. Education is not only free but is compulsory for all children between certain ages. The obligation is imposed on parents (in accordance with definitions contained therein) to ensure that their children are both enrolled at and attend school. However, parental choice of education provider is allowed within each jurisdiction by way of state, private or church schools, all of which are registered and regulated to varying degrees by the state. The legislation of each jurisdiction also makes some degree of provision for parents who choose to opt out their children from any formal education setting and to educate them at home. Home education is also subject to state regulation. The assumption by the state of the responsibility for education guides this policy and legislation. The argument for state control of all education, no matter how and by whom it is provided, is that the state has an overriding interest in ensuring the economic well-being of its citizens and the growth of its intellectual capital. The state acknowledges that the responsibility for education is shared with parents, primarily by providing penalties for parents who fail to ensure enrolment and attendance of their children at a school. There is evidence that more and more parents in developed countries worldwide are choosing to educate their children at home, and anecdotal evidence suggests that Australia is part of this trend. To this end, this article critically examines the balance and relationship between the exercise of parental choice and responsibility in education, and state regulation and control. It does so by examining the means by which the legislation of different jurisdictions allows for choice in the exercise of the right to education, with particular reference to home education, places limitations on that choice and imposes control on the delivery of education outside state schools.     

State child health; implementing regulations for the State Children's Health Insurance Program. Health Care Financing Administration (HCFA), HHS. Final rule

Section 4901 of the Balanced Budget Act of 1997 (BBA) amended the Social Security Act (the Act) by adding a new title XXI, the State Children's Health Insurance Program (SCHIP). Title XXI provides funds to States to enable them to initiate and expand the provision of child health assistance to uninsured, low-income children in an effective and efficient manner. To be eligible for funds under this program, States must submit a State plan, which must be approved by the Secretary. This final rule implements provisions related to SCHIP including State plan requirements and plan administration, coverage and benefits, eligibility and enrollment, enrollee financial responsibility, strategic planning, substitution of coverage, program integrity, certain allowable waivers, and applicant and enrollee protections. This final rule also implements the provisions of sections 4911 and 4912 of the BBA, which amended title XIX of the Act to expand State options for coverage of children under the Medicaid program. In addition, this final rule makes technical corrections to subparts B, and F of part 457.     

Ensuring Insurance for Foster Care: Requiring Foster Parents to Obtain Liability Insurance to Cover Harm Done to Foster Children in their Care

This Note proposes that all states should require that foster parents have liability insurance before children are placed in their care. This Note also proposes that the liability insurance needs to cover not just harm to third parties but also harm to the foster children through the negligent acts of the foster parents. This legislation will allow foster children to have standing to bring claims against their foster parents and insurance companies and give them a greater opportunity for recovery. Currently, the policies and statutes governing the policies in place do not cover all types of harm that can occur during the foster parent–child relationship. Certain policies leave children who are harmed by their foster parents’ negligence unable to recover any damages from the people who have harmed them. Because foster parents can be left to defend the actions themselves, they often become judgment proof due to their low income, leaving the children who are harmed with little chance of recovery.

Key Points for the Family Court Community:
• States need to require foster parents to obtain liability insurance, which covers harm done by the foster children to third parties, harm to the home, and any harm done to the child by the foster parents.

     

The role of Medicare reimbursement in contemporary hospital finance

A hospital, while performing its major function of providing health care, is also viewed as a business. It needs capital from a wide variety of sources, many of which are government regulated. Over the past few years, federal expenditures for Medicare have increased dramatically, as has regulation of hospital revenue sources. Congress enacted the Medicare Prospective Payment System (PPS) to curb hospital cost inflation. This Note examines historical trends in health care financing and analyzes the Medicare reimbursement system, with emphasis on PPS and its impact on hospital revenues. The Note suggests that hospitals, due to the effects of PPS, will be forced to reduce their levels of financial leverage and will have to look for corporate financial alternatives. PPS may signal a new era in hospital finance. Survival mandates an increased focus on efficient corporate, financial and managerial policies.     

Interest groups and state Medicaid drug programs

A simultaneous equations model is estimated to analyze the interaction between state Medicaid pharmaceutical drug reimbursement rates, drug recipients per capita, and expenditures per drug recipient. Interest groups are shown to have a strong positive impact on pharmacy reimbursement rates, which, in turn, have an impact on pharmacy participation rates and drug utilization and expenditure patterns. Finally, a strong inverse relationship exists between expenditures per recipient and program size. The results verify the existence of substantial variation in state Medicaid programs and point to potentially growing disparities as a result of current policies.     

The politics of discretionary Medicaid spending, 1980-1993

Why do some states choose to spend more than four times as much as others to provide health care to the disadvantaged? Political scientists who have traditionally explored this question by analyzing trends in overall Medicaid expenditures lumped states' discretionary spending in with other money that states are mandated to spend. Analyses of total expenditures found that socioeconomic factors drove spending but that party control of state legislatures made no difference in health policy making. By isolating discretionary state Medicaid expenditures from total spending figures, I reexamine the influences of political as well as economic and demographic factors. The often-doubted importance of party control becomes clear. This study investigates spending patterns in the discretionary portions of state Medicaid programs in forty-six states from 1980 to 1993 and analyzes both incremental program changes and absolute differences in state spending. To discover how greatly the researcher's choice of dependent variables can affect results, optional spending is separated from total spending levels and the variation is modeled in both. Focusing not on the spending that the federal government requires of state officials but on the policies that state officials actually choose allows a balanced exploration of both political and economic effects on welfare expenditures. This research also provides new insights about which forces will shape policy decisions if more and more control of the public health care system is devolved to the states.