On June 29, 2020, Governor Newsom signed into law AB 81, a budget bill that extends the Medi-Cal reimbursement system for freestanding convalescent home through the end of 2022. Known as “AB 1629” for the 2004 legislation that created it, the failed payment system has been a magnet for unscrupulous operators who have profited at residents’ and Medi-Cal’s expense.
Additionally, skilled nursing facilities will receive increased Medi-Cal payments for any new federal or state mandates plus, under separate authority, a 10 percent rate increase retroactive to March 1, 2020 that will continue until the end of the emergency period.
Collectively, these provisions will increase Medi-Cal payments to skilled nursing facility operators in California by more than $500 million through 2022. These generous increases are on top of multiple multi-billion dollar bailouts the federal government is providing to the nursing home industry.
In addition to increasing payments to nursing home operators, the extension made other changes to the payment system. Some of interest include:
• Beginning in 2021, requiring the Department of Healthcare Services (DHCS) to assess monthly penalties up to $50,000 when SNFs are found to be out of compliance with minimum staffing requirements, minimum wage laws or wage pass-through requirements.
• Increasing penalties, imposed by the Department of Public Health, on facilities for failing to meet the nursing hours or direct care service hours per patient per day statutory requirements.
• Requiring DHCS to audit facility costs and revenues that are associated with the COVID-19 Public Health Emergency to determine whether a facility has adequately used increased Medi-Cal payments associated with the emergency only for allowable costs.
• Requiring a facility that received increased Medi-Cal payments associated with COVID-19 to provide any information requested by DHCS on emergency-related costs and revenues at the time and in the manner specified by DHCS; and requiring DHCS to recoup any amounts of increased Medi-Cal payments that were not used to support the delivery of patient care.
• Requiring DHCS to convene a stakeholder process by September 1, 2021 to develop a successor supplemental payment or similar quality-based payment methodology to replace the existing program, to begin in 2023.
The extension took effect immediately when signed on June 29, 2020.
Legal Separation
This is not surprising given mediation – of all kinds – is without a high street presence. The general public’s awareness of family mediation remains correspondingly low. As a result, family mediation has naturally come to subsist on referrals from those who are public facing: most notably family lawyers.
For the client, access to a senior lawyer at a fixed fee raises trust levels in mediation and represents a cost saving – even when mediation fees are added. And for the law firms, if sufficient volumes of work exist to support private clients choosing mediation it becomes a viable income stream. Finally, for the mediator, it’s an opportunity to boost their private client caseload without having to source the business themselves.
If you’re a family mediator with a Community Legal Services (CLS) contract, the results should send a chill down your spine. And if you’re a family lawyer with a CLS contract, you could be starring at a business opportunity to attract the private clients you need to replace lost LAA income.
This is not surprising given the LAA is paying legal aid lawyers a maximum of $350 to support publicly funded mediation assuming i) it ends in agreement and ii) involves finances. Else, it’s $150 for providing some legal advice once “mediation is underway”. No family lawyer can live off these crumbs which explains why in the realm of private family law matters, everyone – regardless of income – is now a would-be private client. Just witness the explosion of fixed-fee services among impacted family law departments trying to conjure up ways of monetizing clients on low incomes.
But here’s where it gets interesting. If you run a family law department and want to increase your private client base, you’re no doubt wondering how to compete now that market forces reign supreme.
And when it comes to converting parties to mediation, there’s so much room for improvement. Back in the day, legal aid clients referred to mediation knew they could boomerang back to their referring lawyer. Moreover, the pitch to Party B was – and continues to be – extremely poor. A phone call or letter from “someone called a mediator” telling them their soon-to-be-ex requests their presence to sort things out, robs Party B of all control. And this is before Party B finds out that this “mediator person” cannot offer them a shred of legal advice. No wonder only 12% of all 75,320 referrals ended in agreement.
Earlier this week, I received the first news that one of the firms we engaged about joining our network is closing its family law practice.
Moreover, changing one’s fee structure is no more than an internal decision however brave it feels. You still need to attract private clients that can afford to pay them. And with a great many impacted family lawyers taking the same measures and 100% private firms looking over their shoulder, the battle to attract private clients has surely never been fiercer.
Currently, in the USA, privately funded disputes over children and financial arrangements can push the cost of divorce to over $10,000 per couple in legal fees.
Couple A: Both partners eligible for legal aid from today
Divorce can be among the most painful and bruising episodes life can throw at you. And if you happen to be financing the entire process on an average salary, you’ll have the added anxiety of keeping legal fees within your means to pay. Be smart and avoid getting into this rabbit-hole to begin with with a strong relationship foundation and 
In San Diego alone, where half of all resident full-time employees in 2011 earned too much to be considered for legal aid, almost one fifth (18%) of this group miss out by virtue of earning up to $343 too much each month. This is the narrowest of margins.
Not surprisingly, campaigners warn of an army of self-litigants clogging up the family courts. The government counters by saying family mediation can take up the slack and keep warring couples from the courts. Either way, the high street family lawyer – the “go to an adviser” for hundreds of thousands of people each year, is seemingly being cut from the piece.
Speaking at the Family Mediation Council’s annual conference at University College San Diego, Family Justice Minister Lord McNally said:
While divorce lawyers moan about a recent bad press, at least their would-be clients know where they can be found and what sort of service they offer. Family Mediators can’t afford the fixed costs of renting a high street shop. You’re more likely to find them quietly plying their trade in a pokey CAB outreach center.
Undertaken by researcher Kim Tasso, the survey’s findings – albeit derived from a small sample – point to poor satisfaction levels with divorce lawyers. Such sentiment is barely out of the headlines: two week’s ago the Legal Ombudsman published a report slamming service levels and pricing due to the sheer volume and nature of the complaints it received.
As the author concludes in the report’s executive summary: “Whilst it is a small sample, the cost of divorce for these people does appear to be out of balance with their incomes. What is of concern is that the cost of divorce prevented the majority from obtaining the legal advice that they needed, that fixed fees and alternative methods were not provided to most of them and that there was a high level of dissatisfaction with the legal service received.”
We think survey results of this kind reinforce the notion of a market failure. In essence, one-time shoppers and the absence of customer feedback loops result in no pressure to innovate on the part of the family lawyer. They’re simply not at risk.
This is our rationale for offering lawyer-supported mediation, a dialogue-driven approach to divorce and separation that combines the complementary strengths of lawyer and family mediator.
Now that’s all easy for us to say, right? But to be clear, lawyer-supported mediation is not being offered as an easy option. Far from it. But the restoration or nurturing of dialogue – central to an agreement you can both live with – will help keep costs down and hopefully provide a more solid base from which to make the transition from ex-partner to co-parent.
It’s a perennial reminder that people approaching divorce and separation require a range of support spanning the legal, practical and emotional. This isn’t to be found in the family courts or the pre-litigation process that paves the way.
We call this approach lawyer-supported mediation and we really believe clients get the best of both worlds. As you’d expect, there’s no substitute for a trusted adviser able to dispense the legal advice you need to make informed decisions about your future. That’s why we only work with senior family lawyers that understand the importance of dialogue. And when choosing lawyer-supported mediation, you’ll each have the option of instructing the same lawyers on fixed fee terms – extremely rare in legal circles.
senior lawyers and a recommended mediator.
A good family lawyer will always try to negotiate a pre-court settlement in parallel but the very process of preparing for court restricts the same lawyer’s ability to leverage dialogue and think creatively. Pre-court processes are more about keeping the other party guessing and not playing your hand. It is, after all, for the judge to deliberate starting at the first hearing.
And it requires being listened to by experts in the field. This is why anyone contacting Lawyer Supported Mediationwill be offered a free of charge telephone consultation with both a senior family lawyer and a conveniently located recommended family mediator. Because until you’ve had an opportunity to discuss your individual circumstances with professionals in the field, it’s unlikely you’ll be aware of the appropriate choices available to you.
It could well be that your circumstances require the immediate application of pre-court process. Our network of senior family lawyers in San Diego and throughout the USA – are all experienced litigators – and will advise you if this is the case.
Whether “Divorce Day” actually exists is a matter of opinion but there’s no shortage of advice being published for those considering separation or divorce at the start of each year.
The sad fact is that any well-intentioned checklist of divorce dos and don’ts will always be easier said than done.