Thursday, September 3, 2015
The Journal of Elder Abuse & Neglect (JEAN) is a great resource. It is the official journal of the National Committee for the Prevention of Elder Abuse (NCPEA). The Journal is published 5 times/year by Routledge. If you aren't familiar with JEAN, the website explains its purpose. It is:
the peer-reviewed journal that explores advances in research, policy and practice, and clinical and ethical issues surrounding the abuse, neglect and exploitation of older people. This unique forum provides state-of-the-art research and practice that is both international and multidisciplinary in scope. The journal’s broad, comprehensive approach is only one of its strengths — it presents research case studies, practice and policy issues, exploratory studies, commentary, and reviews on a wide range of topics designed to increase the knowledge base of scholars and professionals.
Recently JEAN's "editors' choice" article collection was posted online with free access! According to the website, "[t]hese articles were selected by the Journal of Elder Abuse & Neglect Editorial staff – Editor-in-Chief Karen Stein, PhD. and Associate Editor Sharon Merriman-Nai, MC – as key research to the field. Routledge Journals is pleased to offer FREE ACCESS to these articles until December 31, 2015." Subscription information is available here.
Third Circuit Rules Medicaid Applicants' Short-Term Annuities Are Not "Resources" Preventing Eligibility
In a long awaited decision on two consolidated cases analyzing coverage for nursing home care, the Third Circuit ruled that "short-term annuities" purchased by the applicants cannot be treated by the state as "available resources" that would delay or prevent Medicaid eligibility. The 2 to 1 decision by the court in Zahner v. Secretary Pennsylvania Department of Human Services was published September 2, 2015, reversing the decision (linked here) of the Western District of Pennsylvania in January 2014.
The opinion arises out of (1) an almost $85k annuity payable in equal monthly installments of $6,100 for 14 months, that would be used to pay Donna Claypoole's nursing home care "during the period of Medicaid ineligibility that resulted from her large gifts to family members"; and (2) a $53k annuity purchased by Connie Sanner, that would pay $4,499 per month for 12 months, again to cover an ineligibility period created by a large gift to her children.
The Pennsylvania Department of Human Services (DHS) argued that the transactions were "shams" intended "only to shield resources from the calculation of Medicaid eligibility." However, the majority of the Third Circuit analyzed the transactions under federal law's "four-part test for determining whether an annuity is included within the safe harbor and thus not counted as a resource," concluding:
Clearly, if Congress intended to limit the safe harbor to annuities lasing two or more years, it would have been the height of simplicity to say so. We will not judicially amend Transmittal 64 by adding that requirement to the requirements Congress established for safe harbor treatment. Therefore, Claypoole's and Sanner's 14-and 12-month contracts with ELCO are for a term of years as is required by Transmittal 64.
Further, on the issue of "actuarial soundness," the court ruled:
[W]e conclude that any attempt to fashion a rule that would create some minimum ratio between duration of annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations. It would be an additional requirement to those that Congress has already prescribed and result in very practical difficulties that can best be addressed by policy choices made by elected representatives and their appointees.
The her short dissent, Judge Marjorie Rendell explained she would have affirmed the lower court's ruling in favor of DHS on the "grounds that the annuities ... were not purchased for an investment purpose, but, rather, were purchased in order to qualify for benefits." In addition, she accepted DHS' argument the annuities were not actuarially sound.
September 3, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 2, 2015
UCLA's Center for Health Policy Research has issued its August 2015 report on "The Hidden Poor," using county-by-county data to demonstrate that "federal" definitions of poverty are not a sufficient measure of true poverty for seniors. What are the "hidden poor?" The UCLA report explains: "The Hidden Poor are defined as those who have incomes above 100 percent of the Federal Poverty Level (FPL), but who do not have enough income to make ends meet as calculated by the Elder Index."
A recent article in the Sacramento Bee highlights key components of the analysis:
More than 300,000 elderly Californians are officially poor, as measured by the federal government, but their numbers triple to more than 1 million when the “hidden poor” are counted, according to a new study from UCLA’s Center for Health Policy Research.
National poverty guidelines say that for a single elderly adult living alone, the poverty line is $10,890 a year, but UCLA’s “elder index” puts it at $23,364 in California.
Those “hidden poor” Californians over 65 tend to be Latino or black. Their greatest concentrations are found in rural counties with overall low income levels, topped by Imperial County, where more than 40 percent of the elderly are the hidden poor....
The study said population groups with especially large proportions of the hidden poor include grandparents raising grandchildren, elderly with adult children living at home, and single elders.
Accurate measurements of poverty are core to planning of resources for any age group, including seniors. How does your state account for needy seniors?
Research shows that empowering individuals to actively participate in personal decision making improves life outcomes and can reduce the risk of abuse and exploitation. There is a risk of abuse and exploitation in all models of decision making for persons with differing abilities. An overly protective response to situations where a person with varying levels of capacity may be at risk can stifle self-determination and empowerment. Protection needs to be carefully balanced with protecting human and constitutional rights. Adults have a basic right to make choices, good or bad, and determine the course of their lives. An overly aggressive, or inappropriate protective response to limited capacity can itself be a form of abuse. This session will talk about recognizing the signs and signals of abuse, neglect (self-neglect) and exploitation, tools to maximize communication with persons with differing abilities, and promoting self-determination and choice through supported approaches that mitigate against risk and empower individuals. The session will explore the application of the Supported Decision Making model to assist persons in making choices, increase access to positive life outcomes, and reduce the risk of harm.
The webinar is free. To register click here.
Tuesday, September 1, 2015
While visiting in California this summer, I began following the dispute between University of California San Diego (UCSD), a public university, and University of Southern California (USC), a private university, over control of Alzheimer's research, originally known as the Alzheimer's Disease Cooperative Study. At first the outcome seemed predicted by judicial rulings favoring UCSD in a suit filed in San Diego courts. The most recent news coverage, however, suggests that what began with USC hiring away UCSD's top researcher, has continued with USC successfully luring away major funding. As reported in a San Diego Union-Tribune article:
While the La Jolla-based campus has so far won in court — with a Superior Court judge giving it continued control of the Alzheimer’s initiative — it is losing most of the contracts, money and trust of that program’s participants across the country.
USC said it has obtained eight of the project’s 10 main contracts after convincing sponsors that it is better suited to manage their clinical trials of experimental drugs and therapies for the neurological disorder. Those sponsors are defecting from the Alzheimer’s Disease Cooperative Study, or ADCS, and shifting to an institute that USC recently opened in San Diego....
UC San Diego confirmed the major setback, but said USC may be overstating matters by claiming that the contract transfers are worth up to $93.5 million. UC San Diego is still totaling its financial losses. Officials at the La Jolla school concede that they failed to tightly manage the Alzheimer’s program and allowed it to drift away from campus life. UC San Diego Chancellor Pradeep Khosla did not respond to requests for comment on the largest loss of research funding in the university’s history.
But campus officials said they are confident about rebuilding the Alzheimer’s program.
Pharmaceutical giant Eli Lilly was reported to be moving "millions" of dollars of research to USC control earlier this summer.
The USC Provost, while sounding very "corporate" in talking about USC's plans, is quoted as offering some consolation, with the possibility of working with UCSD in getting "back to being partners for better research."
Check out the guides available from Disability.gov. There are 14 guides available:
- Assistive and Accessible Technologies Guide
- Disability Benefits Guide
- Disability Rights Laws Guide
- Emergency Preparedness and Disaster Recovery Guide
- Employment Guide
- Family Caregivers Guide
- Federal Government Grants Guide
- Financial Help for Low-Income Individuals and Families Guide
- Health Information and Resources Guide
- Housing Guide
- Self-Employment and Starting a Small Business Guide
- Student Financial Aid Guide
- Student Transition Planning Guide
- Transportation Guide
Each guide contains a brief overview, links to begin, and further information.
Monday, August 31, 2015
The Pew Research Center on August 18, 2015 released the FactTank 5 facts about Social Security (the FactTank is "[r]eal-time analysis and news about data from Pew Research writers and social scientists."). So what are those 5 facts? Here you go!
Social Security touches more people than just about any other federal program.
Social Security is, and always has been, an inter-generational transfer of wealth.
Right now, Social Security has plenty of assets.
But since 2010, Social Security’s cash expenses have exceeded its cash receipts.
Social Security’s combined reserves likely will be fully depleted by 2034....
Oliver Sacks, neurologist and author (and much more more), often wrote about issues relevant to aging, including his own. Sadly he won't be able to continue to share his insights, as he passed away on August 30, at "just" 82 years. The New York Times reported the news here. But I think that perhaps the most important words come from Dr. Sacks himself, including those from a recent essay, "The Joy of Old Age (No Kidding)." Here are some words to live by:
At nearly 80, with a scattering of medical and surgical problems, none disabling, I feel glad to be alive — “I’m glad I’m not dead!” sometimes bursts out of me when the weather is perfect. (This is in contrast to a story I heard from a friend who, walking with Samuel Beckett in Paris on a perfect spring morning, said to him, “Doesn’t a day like this make you glad to be alive?” to which Beckett answered, “I wouldn’t go as far as that.”) I am grateful that I have experienced many things — some wonderful, some horrible — and that I have been able to write a dozen books, to receive innumerable letters from friends, colleagues and readers, and to enjoy what Nathaniel Hawthorne called “an intercourse with the world.”
I am sorry I have wasted (and still waste) so much time; I am sorry to be as agonizingly shy at 80 as I was at 20; I am sorry that I speak no languages but my mother tongue and that I have not traveled or experienced other cultures as widely as I should have done.
I feel I should be trying to complete my life, whatever “completing a life” means. Some of my patients in their 90s or 100s say nunc dimittis — “I have had a full life, and now I am ready to go.” For some of them, this means going to heaven — it is always heaven rather than hell, though Samuel Johnson and James Boswell both quaked at the thought of going to hell and got furious with David Hume, who entertained no such beliefs. I have no belief in (or desire for) any post-mortem existence, other than in the memories of friends and the hope that some of my books may still “speak” to people after my death....
At 80, one can take a long view and have a vivid, lived sense of history not possible at an earlier age. I can imagine, feel in my bones, what a century is like, which I could not do when I was 40 or 60. I do not think of old age as an ever grimmer time that one must somehow endure and make the best of, but as a time of leisure and freedom, freed from the factitious urgencies of earlier days, free to explore whatever I wish, and to bind the thoughts and feelings of a lifetime together.
Nunc demittis servum tuum, with our deep thanks and lasting memories.
Friday, August 28, 2015
Medicaid Eligibility: Ohio Supreme Court Addresses Effect of Post-Admission, Pre-Eligibility Transfer of Home
One year and six days after hearing oral argument in Estate of Atkinson v. Ohio Department of Job & Family Services, a divided Ohio Supreme Court ruled in favor of the State in a Medicaid eligibility case involving transfer of the community home. The majority, in a 4-3 vote, ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set." However, the court also remanded the case to the lower court for recalculation of the penalty period under narrow, specific provisions of state and federal law.
Attorneys representing families in "Medicaid planning" scenarios will be disappointed in the ruling, because it rejected "exempt asset" and "timing" arguments that would have permitted some greater sheltering of assets after the ill spouse's admission to the nursing home.
At the same time, the complex reasoning and specific facts (involving transfer of the family home out of the married couple's "revocable trust" to the community spouse), will likely create additional business for elder law specialists, especially as the majority distinguished the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."
The dissent was strongly worded:
It is clear that the law treats the marital home very carefully to prevent spousal impoverishment at the end of life. And that is the public policy we should be embracing. Based on the plain language of the federal statutes and the Ohio Administrative Code, as well as the holding of the United States Court of Appeals for the Sixth Circuit in Hughes v. McCarthy, 734 F.3d 473, I would hold that the transfer of the home between spouses prior to Medicaid eligibility being established is not an improper transfer and is not subject to the CSRA cap.
To view the oral argument of the case before the Ohio Supreme Court, see here.
Sometimes "small" cases reveal larger problems. A recent appellate case in Pennsylvania is a reminder of how practical solutions, such as establishing a joint bank account to facilitate management of money or to permit sharing of resources during early stages of elder care, may have unforeseen legal implications later. In Toney v. Dept. of Human Services, decided August 25, 2015, the Commonwealth Court of Pennsylvania ruled that "half" of funds held in a joint savings account under the names of the father and his son, were available resources for the 93-year-old father. Thus the father, who moved into a nursing home in May 2014, was not immediately eligible for Medicaid funding.
The son argued, however, that most of the money in the account was the son's money, proceeds of the sale of his own home when he moved out of state almost ten years earlier:
"The son alleged that his father used the bulk of that money to maintain himself, with the understanding that any money remaining from that CD after his father's death would revert to him. The ALJ, however, rejected the son's testimony as self-serving and not credible...."
I had blogged previously about the White House Conference on Aging (WHCOA) and the topic of dementia-friendly cities. The Administrative for Community Living (ACL) is offering a webinar on September 1 at 4 p.m. edt on Dementia-Friendly Communities. The announcement describes the webinar:
Join the National Alzheimer’s and Dementia Resource Center for a webinar on creating communities that are safe and respectful, provide support, and work toward quality of life for people living with dementia and their families.
Webinar participants will learn about key concepts related to Dementia Friendly Communities and hear from community leaders putting these concepts into action.
The registration page is no longer taking registrations but hopefully there will be an archive of the webinar for those of us unable to attend. The National Alzheimer's and Dementia Resource Center was formerly known as the Alzheimer's Disease Supportive Services Program.
Thursday, August 27, 2015
Dr. Brenda Ukert of the National Center for State Courts will be speaking on September 2, 2015 at a webinar on How to Protect our Nation's Most Vulnerable Adults through Effective Guardianship Practices. The one hour webinar starts at 1 PM edt. The registration page describes the webinar:
Adult guardianship cases are some of the most complex cases handled in civil and probate courts. While each state differs in qualifications, processes, and monitoring requirements, there are standards that can guide your court in developing robust practices that enhance both court efficiencies and oversight. This webinar, based on NACM’s Adult Guardianship Guide, provides action steps courts can take to improve guardianship practices. Concrete examples of innovative approaches and collaborative efforts will be highlighted. Consideration will be given to the level of resources available to the court.
Justice in Aging offers a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.
The papers include:
- Paper 1: Issue Overview
- Paper 2: A Review of Dementia Training Standards across Health Care Settings
- Paper 3: A Review of Dementia Training Standards across Professional Licensure
- Paper 4: Dementia Training Standards for First Responders, Protective Services, and Ombuds
- Paper 5: Promising Practices-Washington State-A Trailblazer in Dementia Training
To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home. Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards. The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel.
If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.
August 27, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, August 26, 2015
Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents. LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies.
Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning. Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice." Here's a link to one recent example.
The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following:
"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com."
Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state. The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission. LegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers.
August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Recently I was listening to satellite radio while on the road, and caught a Fresh Air interview with Robert Price, celebrated author of hardscrabble crime fiction, including Clockers (2008)and his most recent novel The Whites (2015). Is it my imagination, or are "older adults" appearing more and more often in mainstream fiction and movies? Apparently a central character in The Whites is just such an "senior." In Price's interview, I was struck by the humor of his observations about how growing older himself has influenced his writing, but also about much his grandparents' lives affected his fiction. And I couldn't help but laugh when he observed that no one likes the "math" as you get older, although he is now the first to admit that "65 is the new 64." Here's a link to the 44 minute podcast with Terry Gross.
The Centers for Medicare & Medicaid Services (CMS) provides the Medicare Learning Network (MLN). MLN provides, among other things, articles, trainings, and national provider calls. The next national provider call is scheduled for September 3, 2015 at 1:30 p.m. edt on the National Partnership to Improve Dementia Care and QAPI. Here is the description of this call
During this MLN Connects® National Provider Call, two nursing homes share how they successfully implemented person-centered care approaches and overcame the barriers of cost and staff. Additionally, CMS subject matter experts update you on the progress of the National Partnership and Quality Assurance and Performance Improvement (QAPI). A question and answer session follows the presentations.
The National Partnership to Improve Dementia Care in Nursing Homes and QAPI are partnering on MLN Connects Calls to broaden discussions related to quality of life, quality of care, and safety issues. The National Partnership was developed to improve dementia care in nursing homes through the use of individualized, comprehensive care approaches to reduce the use of unnecessary antipsychotic medications. QAPI standards expand the level and scope of quality activities to ensure that facilities continuously identify and correct quality deficiencies and sustain performance improvement.
Should you register for this program? The intended audience is "[c]onsumer and advocacy groups, nursing home providers, surveyor community, prescribers, professional associations, and other interested stakeholders." So, if you fall into one of those groups, the answer is yes, you should register. Registration information is available here.
More information about the National Partnership to Improve Dementia Care in Nursing Homes is available here.
Tuesday, August 25, 2015
An interesting approach to the topic of aging faculties in higher education recently came across my virtual desk in the form of an advertisement for an upcoming webinar (with an interesting price tag to match). The title of the program is "Managing and Supporting an Aging Workforce," offered by Academic Impressions (a company I'm not familiar with) on November 15, 2015 from 1 to 2:30 p.m. EST.
The brochure advises "Given the nature of this topic, this online training is appropriate for human resources professionals, department chairs, deans, and senior administrators who deal with faculty and personnel issues."
Here's the description, which strikes me as charting a careful approach to helping (encouraging?) older faculty members make the decision to retire, without running afoul of age discrimination laws.
Experienced academic and administrative employees are the pillars for many institutions in higher education. However, with many faculty and staff members working well into their 60’s and 70’s, administrators face the challenge of supporting an aging workforce while having the appropriate policies and procedures in place.
Learn how to better balance the interests of your employees with the needs of your institution. This webcast will cover:
Laws governing discrimination and how to remain in compliance
Appropriate steps for dealing with diminishing capabilities
Performance reviews, policies, and procedures
Monday, August 24, 2015
Justice In Aging has released an updated version of their guide, 20 Common Nursing Home Problems
and How to Resolve Them. Originally published in 2005, the guide has been updated and released in July, 2015. The guide is free and downloadable after registering your name, email address and indicating whether you are a professional or family member of a resident. The guide is authored by Eric Carlson, a well-know leader in the field on representing residents of nursing homes. Eric is also the author of Long Term Care Advocacy, published by LexisNexis.
In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians. The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator.
On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians. In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference.
Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian. While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice. Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .
Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian.
Today Ken Dychtwald (AgeWave) will appear on NPR/KQED’s Forum with Michael Krasny. The call-in program is set from 10-11 pdt. According to the email announcement I received from AgeWave, the program host and Mr. Dychtwald "will be candidly discussing Ken’s thoughts and personal feelings about what it means to be an aging expert who just turned 65. For the first time, Ken will publicly reflect on how he is both distressed and motivated by his own aging process and how his books, such as Age Wave, may or may not jibe with what he is now experiencing personally." Listen to the interview here: http://www.kqed.org/radio/listen/.
Can't make the live program? This is the link to where the interview will be archived: