Does Undertreatment of Pain Constitute Elder Abuse?

A national right-to-die advocacy organization, the Compassion in Dying Federation, is funding the first court case to assert that failure to treat pain adequately is a form of elder abuse. The case of William Bergman, an 85-year-old who died of lung cancer, will proceed to trial in Alameda County, California, this year.

Bergman, complaining of intolerable pain, was admitted to a medical center in Northern California. Throughout his five-day stay, nurses charted his pain levels as ranging from 7–10 on a 10-point scale. When he was discharged, Bergman’s pain level was unchanged. His family was able to get another physician to prescribe pain medication, but the day after Bergman began to experience pain relief, he died.

The Medical Board of California investigated the family’s complaint and concluded that Bergman’s pain care was inadequate. When the family filed suit in state court asserting medical malpractice and elder abuse, the defendant physician and hospital asked the court to dismiss the elder abuse claims. The court dismissed the malpractice claim but ruled that the claim for elder abuse should go forward to trial.

In a press release, Barbara Coombs Lee, executive director of the Compassion in Dying Federation, commented, “California medical providers are now on notice—either treat dying patients properly, or risk significant consequences.” The most significant consequence that defendant medical providers face, according to Lee, is that plaintiffs may be able to recover damages for pain and suffering, which are not recoverable under medical malpractice claims.

Also according to the press release, plaintiffs who sue for elder abuse can avoid the caps on damages that are specified in the medical malpractice statute. The federation hopes the trial makes providers more attentive to pain, and the organization wants to help providers by lobbying against the “Pain Relief Promotion Act of 1999” currently under consideration in Congress. That bill calls for the Drug Enforcement Administration to investigate physicians’ intent in prescribing pain medication.

HCFA Imposes Penalties to Ensure Resident Safety

According to the HCFA Press Office, the agency is:

• Instructing states to impose immediate sanctions, such as fines, against nursing homes in more situations—including any time a facility is found to have caused harm to a resident on consecutive surveys
• Increasing states’ flexibility to encourage speedier action to stop payments for new admissions and to impose other sanctions when nursing homes violate federal health and safety requirements
• Enhancing its Internet consumer service “Nursing Home Compare,” www.medicare.gov/nursing/home.asp, to include information about the prevalence of bed sores, weight loss, and other health conditions among residents of individual nursing homes
• Updating its “Guide to Choosing a Nursing Home,” www.hcfa.gov/medicare/nurshm1.htm to take families and friends through a step-by-step process of identifying an appropriate home

For more information, contact Craig Palosky of the HCFA Press Office at 202-690-6145.

Know Where You Stand on ‘Nursing Home Compare’

If a facility receives Medicaid or Medicare funding, it is a good idea for staff members to check out how their facility stands up to public scrutiny of their quality standards. In four easy steps, anyone can access information about facility bed counts; information about the facility’s residents, such as what medical conditions they have; and information about the nursing facility’s inspection results, such as the number of deficiencies reported during the last survey.

The Web site also lists the average number of nursing home health deficiencies reported in a particular state and in the United States. Nursing home administrators are encouraged to check the accuracy of this Web-based information, as consumers are already using it to compare facilities.

If facility administrators believe the Web site contains inaccurate information about their facility, they may contact their state survey agency to report suspected errors. If problems are not resolved at that level, administrators may contact a HCFA regional office.

What Can $1.1 Trillion Buy?

The increase was the largest jump in overall health care spending since 1993, with the greatest increase occurring in the category of prescription drug spending, which totaled $90.6 billion in 1998, up 15.4% from 1997.

Recent data from The MEDSTAT Group, a policy research group in Ann Arbor, Michigan, estimate total U.S. prescription payments per capita per year as follows:

• Active employees, $302.45
• Early-retirees, $719.61
• Medicare-eligible retirees, $969.85

While overall U.S. health care spending increased in 1998, Medicare spending fell, causing Medicare-eligible retirees, who have the highest per capita prescription payments, to turn to the prescription coverage and low out-of-pocket costs offered by Medicare+Choice HMOs. According to the Health Care Financing Administration’s “Medicare Managed Care Contract Reports” of November 1999, there are 310 Medicare+Choice plans available across the nation, and that number is growing.

As the nation’s “baby-boom” generation ages and starts to become eligible for Medicare after 2010, Medicare spending is expected to jump sharply, and today’s $1.1 trillion in health care spending may look like a drop in the bucket.

Congress Says Oral Calcium Supplement Would Save Money

According to the National Kidney Foundation, about 304,000 Americans suffer from kidney failure, or end-stage renal disease (ESRD), making it one of the costliest illnesses in the country.

Under a 1972 law, people with ESRD are considered disabled and eligible for Medicare, regardless of age. Currently, Medicare is barred by law from covering prescription drugs that patients administer themselves. Most dialysis patients use calcitriol rather than oral calcium because of this reimbursement policy.

The congressional study on use of oral calcium supplements points up the need for a Medicare drug benefit, as proposed by the White House, according to a Health Care Financing Administration (HCFA) spokesman quoted in The Wall Street Journal. Calcitriol costs about $2,065 per year per patient, and the oral form of calcium costs about $438 per year per patient.

A spokesman for Holt told The Wall Street Journal that the lawmaker would push for legislation to cover the oral form of the drug, and that such a change could be made even in the absence of other Medicare reforms.

Medicare+Choice + BBRA = Not Enough?

The 1999 BBRA that President Clinton signed into law features a year 2001 increase in payments to Medicare +Choice plans of 3.3% in counties with the lowest reimbursement rates, with a guaranteed minimum increase of 2% for remaining counties. In a recent issue of Health News Daily, Ignagni said the small update actually amounts to a decrease in benefits for Medicare+ Choice enrollees, as plans will have to cut back on benefits in order to survive under minimal reimbursement and increasing costs.

Without the 1999 BBRA, year 2001 Medicare+Choice plan payments would have fallen by about 3%, according to HCFA. With Medicare+Choice plans largely providing Medicare with a drug benefit, the reimbursement rates do seem minimal in light of the nation’s whopping 15.4% increase in spending on prescription drugs from 1997 to 1998.

California Pharmacists Now Eligible for Overtime Pay

Some pharmacists, particularly those in institutional settings, think the new law, with its overtime compensation requirements, makes them rank-and-file workers instead of professionals. As managed care forces health care professionals to manage more patients with fewer resources, however, pharmacists are seeking fair compensation for their labor, much like physicians who have begun to unionize.

Under the new California law, the eight-hour workday and five-day work week are standard, but pharmacists and their employers do have the flexibility to negotiate alternatives such as a 10-hour-per-day, four-day workweek. In a recent issue of Drug Utilization Review newsletter, California Pharmacists Association Chief Executive Officer Carlo Michelotti said his organization was concerned about increased dispensing errors due to heavy workloads. He felt that having fatigued people doing highly detail-oriented tasks in heavy volume practices could create an opportunity for increased medication errors.

According to Michelotti, there are no pharmacists in the California legislature, but lawmakers viewed the issue as a labor dispute and were thus sympathetic to the pharmacists’ concerns.

State Pharmaceutical Costs on the Rise

Medicaid expenditures accounted for 19.1% of the $884 billion in total state spending in fiscal year 1999. According to a report by the National Association of State Budget Officers, Medicaid is the second largest factor in state spending, after education.

In 1999, 1,400 of the 27,000 state health care bills became law. For 2000, states are focusing on bills that expand drug purchase subsidies for low-income seniors, provide bulk purchasing deals to secure discounts from drug makers, and achieve direct drug price controls.

State legislatures are able to move quickly on bills, according to Massachusetts state Sen. Marc Montigny (D-Bristol), because states are not affected by aggressive lobbying that often blocks federal health care bills. In addition, states work in a more bipartisan manner, Montigny said at the National Conference of State Legislatures.

More on Senior Access to Prescription Drugs

According to the study, seniors should be allowed to combine Medicare funds with the money they currently spend on private insurance and pay premiums into a comprehensive private plan instead. For example, Medicare provides about $5,800 per beneficiary per year. This amount, combined with the $1,611 that 36% of beneficiaries spend on Medigap insurance, should pay for a range of health insurance options.

The out-of-pocket cost to pay premiums for an HMO with comprehensive health coverage, including prescription drugs, or to enroll in a fee-for service plan with a high deductible and a medical savings account, could average about $1,200 a year, significantly less than what some seniors now pay for Medigap insurance, according to the study.

Barbara Eilenfield
Senior Editor