Wednesday, April 25, 2018
On April 24, 2018, members of the Organization of Residents Association of New Jersey, or ORANJ, held a plenary meeting at Cedar Crest Retirement Community in Pompton Plains, New Jersey. ORANJ President Ron Whalen began the meeting with an update on pending legislation attempting to resolve residents' concerns about timeliness of payments on "refundable fee agreements." Part of the message is reflected in the history of Pat Lund, a resident of a CCRC in Waterford Township, New Jersey, who waited eight years for her "refundable fee" to be paid after moving out of her apartment. Under the terms of her contract, the refund was not "payable" until someone else occupied her specific unit but the facility seemed to have little interest or incentive to market her particular unit. For more on this topic, see my update post from last week. As summarized by Ron Whalen, "many of the 10,000 New Jersey residents in CCRCs (also known as Life Plan Communities or LPCs) have this type of contract."
James McCracken, the new president and CEO of LeadingAge New Jersey was the afternoon speaker and he provided a roundup of topics affecting older adults in New Jersey as the legislative season draws to a close, including concerns about "earned sick leave," delayed Medicaid payments by the state to care facilities, proposed minimums on CNA staffing at care facilities, and changes to minimum wage.
I spoke in the morning about issues I see affecting CCRCs and LPCs nationally and in New Jersey, including topics that challenge tax-exempt CCRCs, such as pressure to make payments in lieu of taxes to state and local authorities. On the topic of resident concerns, I addressed what I call the "big three": lack of transparency on cost and funding issues, the need for effective resident voices in governance, and excessively paternalistic attitudes of some management.
This is at least my third time speaking with ORANJ members over a period of several years, and each time I visit I'm impressed with the strength of their resident organization and their ability to get the state legislature to listen. ORANJ helped their state to be one of the first to get legislative support for CCRC residents gaining the statutory right to serve as voting members on boards of governance, and ORANJ advocacy was also instrumental in passage of an enhanced "bill of resident rights" for CCRC operations.
New Jersey has approximately 40 CCRC/LPC communities within the state. Some 87 percent operate as not-for-profit, while another 13 percent are for profit. The majority of the communities are now part of "multi-site" organizations, and I spoke with several residents who reported on pending conversions of not-for-profit to for-profit.
April 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Kiplinger offers a quiz for you to test your knowledge of Social Security. Do You Really Understand Social Security? offers a ten question quiz with explanations. After you take that quiz, then take the Do You Know the Best Social Security Claiming Strategies? another 10 question quiz with explanations. These would also be really good to have students take to test their knowledge after you have covered Social Security in your courses.
Tuesday, April 24, 2018
We have had several blog posts about the issues with Medicare's Observation Status. A recent story on NPR (thanks to our friend Professor Naomi Cahn for sending it to us) gives us a first-person account of the impact observation status has on a patient's checkbook. How Medicare's Conflicting Hospitalization Rules Cost Me Thousands Of Dollars tells the story of a daughter who had to pay $12k for a nursing home stay for her mother's care because her mother didn't have a qualifying three-day hospital stay even though her mother was in the hospital for 4 nights. Why wouldn't Medicare pay? Say it with me now-observation status. As the daughter relates, her "mother was caught in an administrative wonderland where she slept at a hospital for four nights, but the paperwork said she was an inpatient only one of those nights. Medicare's rules, dating back to the 1960s, require people to spend three nights in a hospital before the federal program will pay for inpatient rehabilitative care." She notes her frustration with the explanations that focused on rules rather than her mother's medical care:
The doctor couldn't admit her as an inpatient because she didn't have a qualifying diagnosis.
Her status was changed from observation to inpatient on the third day because Medicare requires that.
They could not change her status to inpatient for the entire stay because they didn't want to be audited.
She couldn't go to acute rehabilitation, which Medicare pays for, because there was no evidence she had had a stroke or heart attack.
She describes the competing Medicare Rules that produce this dilemma, and hospitals' concerns about audits. She also describes software that hospitals use to decide whether to admit a patient or maintain the patient on observation status. To admit or not to admit, that is the question! (with apologies to William Shakespeare). This long-standing problem rule is well-known, and Congressional bills to fix it haven't gotten traction, she writes. Why not shelve the three-night requirement? The article mentions money as a likely explanation, but it appears that it is not 100% certain that is the reason, as the author cites to two studies from the '70s.
Regardless, I do think we can agree that the requirement catches some folks off guard (despite the NOTICE Act) and costs many folks who need SNF care subsequently a lot of money.
For more on the issue of observation status, visit the Center for Medicare Advocacy.
Monday, April 23, 2018
You've heard the phrases such as "60 is the new 40." Now we learn there may be some truth to the thought that you feel younger than your chronological age.The Washington Post recently published this article, Cliches about only being as old as you feel are starting to have scientific backing.
The article focuses on research that indicates many folks who are older feel good about themselves and about the negative messages about aging that affect us all. The article references "[o]ne study ... [that] found that as people get older, they consistently say they feel younger — much younger — than their actual age. Another study examining the attitudes of the offspring of centenarians concluded that the centenarians’ children — if they, too, were healthy and long-lived — have a strong sense of purpose and meaning to their lives, compared with the general population. Finally, there is evidence that positive attitudes about aging may reduce the risk of dementia, among the most dreaded consequences of aging." Yet, we start being bombarded with negative messages about aging at a very young age. One expert noted that kids even age 3 or 4 already have absorbed "the age stereotypes of their culture,” which it seems come from "many sources, ranging from stories to social media. Individuals of all ages can benefit from bolstering their positive images of aging.” Another expert quoted in the article explains that “[n]egative views about aging are communicated to us early in life, through media, books and movies, and what our friends and family tell us... [and that such] attitudes are present and pervasive already in childhood, so naturally it’s hard to enact meaningful change to these attitudes....”
Several studies are referenced in the article. The studies bear out the idea that folks who are older feel younger than their chronological ages, but as far as younger people's perceptions, they consider old to be a lower number than those who are old would offer. For example, one researcher offered that "teenagers and young adults equated turning 50 with hitting old age."
And we've all heard the saying about attitude is everything. It turns out those with positive views of aging help with reducing stress and decreasing chances of dementia. One research summarizes her findings: She "evaluated 4,765 older people — average age, 72 — who were free of dementia at the start of the study and followed them for four years. The participants answered a series of questions about their beliefs about aging [and the researchers] found [that] those who expressed more-positive age beliefs at baseline were less likely to develop dementia . . . than those who expressed more-negative age beliefs...."
So remember, the class is half-full and aging is not a bad thing!
Friday, April 20, 2018
Recently the Washington Post published an article comparing generational alcohol intake. Teenagers and college-age people drink less while this group pours another round opens with this observation "[e]xperts on alcohol abuse have found one demographic group that’s drinking at an alarming rate. Not teenagers. Not college-age people. It’s baby boomers." The first few paragraphs of the article focus on younger individuals and then turns to Boomers, noting that it's "been known for half a century is that baby boomers tend to like alcohol more than the “silent generation” that preceded them."
"Researchers see a steady rise in alcohol use and binge drinking — as well as what’s known as Alcohol Use Disorder (AUD), an umbrella term for mild, moderate and severe abuse of alcohol — in the 65-plus demographic. Between 2005 and 2014, the percentage of older Americans who reported engaging in past-month binge drinking (defined as women consuming four or more drinks in about two hours, and men consuming five or more) increased from 12.5 percent to 14.9 percent ... [and] [t]he increase in drinking among older Americans is most pronounced among people with greater levels of education and income, and among women.... At continuing care communities, alcohol is typically available as a social lubricant for the majority of residents who haven't graduated to assisted living...."
according to one expert quoted in the article.
One thing that is implicated in this is the perception or impression that moderate alcohol consumption is healthy. "[M]any boomers have embraced the notion that moderate drinking is good for them, compared to abstaining. The evidence there is mixed. A number of studies have shown a reduction in heart attacks among moderate drinkers. But a new study published in the Lancet last week showed no overall improvement in life expectancy among people who had one drink a day compared to those who abstained, and a decrease in life expectancy with any additional drinking. The study's authors concluded that the reduction in heart attacks was offset by other health risks."
Thursday, April 19, 2018
Yesterday, the Senate Special Committee on Aging held a hearing on guardians exploiting individuals under guardianship. The hearing, "Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.” offered 4 witnesses, including elder law prof, and reporter of the new Uniform Guardianship, Conservatorship & Other Protective Arrangements Act, Associate Dean Nina Kohn. The committee chair and ranking member opened the hearing with their individual statements. Their statements, along with the witnesses' testimonies, are downloadable as pdfs. There is also a video of the hearing, available here.
April 19, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink
Wednesday, April 18, 2018
The New Jersey Legislature is considering changes to the state's laws governing "refundable" entrance fee agreements used by some Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities.
Assembly Bills 2747/880 (and a similar bill in the New Jersey Senate, Senate Bill 1532) would limit the amount of time that CCRCs are permitted to retain "refundable" entrances fees after a resident vacates the facility. The Assembly's bills are moving first, with significant floor amendments adopted on April 12, 2018. Refundable entrance fees function, in essence, as a type of interest-free loan by the resident to the community.
The legislative statement accompanying Assembly Bill 2747 explains the original purpose of the proposed changes:
Under current law, a continuing care retirement community may retain an entrance fee for as long as it takes for the unit to be reoccupied by another resident. Absent a maximum refunding period, there is little incentive for the facility manages to aggressively market any particular unit. In some instances, a facility has retained the fee for several years after the unit has been vacated, unreasonably delaying the return of the fee. Further, if the resident has died, an estate may be forced to pay distribution taxes on money representing the fee refund, years before the estate and beneficiaries receive that fee refund.
At the heart of the proposals is a system by which each fully vacated unit would be assigned a "sequential number" that would create an order of priority for payment of refunds, triggered when any refundable fee unit is resold. Under the changes as originally proposed, the law would take immediate effect once passed.
The April 2018 floor amendments tinker with the language about the timing of the refunds (and my first impression is the language is confusing and could create a potential for manipulation of the order of repayments even after a sequential number has been assigned). In addition, the floor amendments permit the facility to apply for an "alternate" method of paying refundable entrance fees based on the units' "similarity" of size and other factors; this change favors the facility. The third change delays the law's implementation date for 90 days after enactment, and also provides that the mandatory sequential numbering system, intended to lead to more timely refunds, would apply only to CCRC agreements entered into on or after the effective date of the newly revised law.
After catching up on the New Jersey legislature under consideration, it occured to me I should check-in on a New Jersey lawsuit about "refundable" entrance fees. In 2015, in the case of DeSimone v. Springpoint Senior Living, Inc., the appellate division of the New Jersey Superior Court permitted residents to continue with their case asserting violation of state laws, arising out of the operators' alleged misrepresentation or failure to disclose a practice whereby the outgoing resident's refundable fees could be subject to reduction if the "resale" of that unit to an incoming resident was resold with a lower entrance fee. The appellate division explained in an unpublished opinion:
If Springpoint's staff or brochures distributed to the DeSimone family misrepresented the terms of the contract by the "lesser of" terms, or failing to disclose that the entrance fee was subject to market trends, and that the entrance fees were already being reduced by Springpoint due to market forces, plaintiff may be able to prove its various causes of action, including a violation of the [state's Consumer Fraud Act].
A clear understanding of this reduction is important because the marketing offices may "discount" entrance fees to attract new residents, hoping to cover operating costs with monthly service fees, including any increases over time. Refundable entrance fees are typically higher than nonrefundable entrance fees. In Ms. DeSimone's case, she had paid $159,000, under a 90% refundable fee plan (plus monthly services fees, based on level of care). She passed away about 16 months later. The facility allegedly sent her estate a refund check for only $80,136, apparently reflecting, at least in part, the fact that the next resident of her unit paid a discounted entrance fee of $127,000.
Checking in with Michael Coren, one of the lawyers representing the plaintiffs in the Springpoint case, I learned the parties have been actively pursuing discovery, and are nearing the stage where the plaintiffs' attorneys will soon ask for certification of the plaintiffs' class. Since the original suit was filed, when there were five Springpoint CCRCs in New Jersey, the nonprofit Springpoint holdings have grown, through acquisition of three existing operations.
These two developments in New Jersey remind me that the reason I added "Contract Law" to my teaching package (replacing Evidence) was because of how much time I was spending looking at contracts and consumer protection issues in elder law matters.
The National Center on Law & Elder Rights has released an issue brief, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. The issue brief offers 4 key lessons:
- Extra care in the creation of advance care planning documents can reduce the risk of abuse and exploitation.
2. Requiring accountability, additional checks and balances, and limited authority are drafting tools lawyers can utilize to limit risk of abuse.
3. Attorneys should advise clients to be extra diligent when selecting the agent(s) named in advance planning documents.
4. Authorizing revocation by third parties can help to limit the damage done by named agents who start to abuse or exploit the client.
I was intrigued by #4-the idea of naming a third party who could step in. The section, Five Safeguards to Consider Adding to a Financial POA discusses that among others. Here's how the issue brief explains the third party revocation provision: "Grant a power to revoke the agent’s authority to a trusted third person. This is a serious power to give any third person, so it requires an exceptional level of trust and reliability in the third person. But, if the agent’s actions prove seriously out of line, this can be a last resort. Some powers of attorney also authorize law enforcement or adult protective services to revoke the authority of the agent if they believe abuse or exploitation is taking place." Sample language is also included for each of the 5 Safeguards.
The brief discusses selection of agents and drafting health care directives in addition to drafting POAs. Practice tips are included as well as case examples. The issue brief is available here.
To learn more about the corresponding webcast click here. To download the PowerPoint for the webcast, click here.
April 18, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Programs/CLEs, Property Management, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Monday, April 16, 2018
Hawaii's governor signed into law the medical aid-in-dying bill, making medical aid-in-dying legal in Hawaii starting January 1, 2019. Hawaii is now the 6th state with a statute, in addition to the District of Columbia. Montana dealt with the issue via a Montana Supreme Court opinion. The Hawaii law provides safeguards. The law is known as "'Our Care, Our Choice' Act" and according to the article published in the Honolulu paper, took two decades to become a reality.
Sunday, April 15, 2018
Of late it seems to me that we have seen a lot of articles dealing with issues regarding end of life wishes. The New York Times ran an article in late March about doctors actually seeing a patient's advance directive. You’ve Detailed Your Last Wishes, but Doctors May Not See Them is written by a doctor who summarizes first-hand experiences in a hospital with one patient in the ER who "had done everything we could have asked. He’d been brave enough to talk with his doctors about his cancer and acknowledge that time was short. He had designated a health care proxy. But there he was, surrounded by strangers, the intubation he never would have wanted looming and the record of that conversation buried in his electronic record."
Here's how the doctor described the problem, as "not about individuals, but instead about a system that doesn’t sufficiently protect patients from getting care they do not want." The issue it seems is documenting the info or the ability to retrieve the info in the chart.
This doctor "delved into the unexpectedly interesting world of advance care planning and electronic health records, interviewing clinicians with on-the-ground experience recording and retrieving these conversations and representatives from the companies behind some of the most widely used electronic records." The stories shared are quite interesting and highlights the issues that arise without a national standard.
Here are some suggestions the author included in the article:
What could really make a meaningful difference, I heard time and time again, is standards for sharing, or “interoperability” across all electronic records that would benefit every patient, everywhere. At least, all related advance care planning documentation should be in one place in the medical record and accessible with one simple click of the mouse. Beyond that, maybe all health systems could require identification of a health care proxy for all patients, so we would know who should make decisions if the patient can’t. Maybe patients should be able to access their health records through a patient-facing interface, send in their own directives, or even update related notes. Ideally, the electronic record isn’t just a clunky online version of a paper chart but actually a tool to help us do our jobs better.
Thursday, April 12, 2018
I know it's near the end of the semester, so tuck this resource away for your classes for next fall. Justice in Aging has released Supplemental Security Income 101 : A Guide for Advocates.
Here's the reason for this guide: "This Guide is designed to introduce advocates and individuals who provide assistance to older adults to the Supplemental Security Income (SSI) program. This Guide is focused on the basics of the SSI program for those who may qualify based on age (65 years or older): the benefits, key eligibility criteria, and the application and appeals processes. This Guide is intended to serve as a complement to other practice guides that focus on issues involving SSI disability determinations, eligibility, and benefits."
The guide is perfect for law students and others who need to gain familiarity with SSI, starting with an explanation of SSI and explaining the distinction between SSI and SSDI.
Great job Justice in Aging!
Wednesday, April 11, 2018
The Alzheimer's Association has released their annual facts and figures report. 2018 Alzheimer's Disease Facts & Figures also includes a special report on the benefits (personal and financial) of early diagnosis. Here are some highlights of topics covered in the report:
Brain changes that occur with Alzheimer’s disease …
Revised guidelines for diagnosing Alzheimer’s disease …
Number of Americans with Alzheimer’s dementia nationally … and for each state …
Proportion of women and men with Alzheimer’s and other dementias …
Lifetime risk for developing Alzheimer’s dementia …
Number of deaths due to Alzheimer’s disease nationally … and for each state … and death rates by age …
Number of family caregivers, hours of care provided, and economic value of unpaid care nationally and for each state …
The impact of caregiving on caregivers …
National cost of care for individuals with Alzheimer’s or other dementias, including costs paid by Medicare and Medicaid and costs paid out of pocket …
Medicare payments for people with dementia compared with people without dementia
Benefits of earlier detection of Alzheimer's disease …
Cost savings of diagnosing during the earlier mild cognitive impairment stage rather than the dementia stage …
There is a lot of helpful information and statistics in the report. The chart showing the numbers of those with Alzheimer's in 2018 compared to the projections for 2025 is very useful. (Just fyi, my state is expected to have a 33.3% increase). Consider this from page 21 of the report:
“[B]etween 2018 and 2025 every state across the country is expected to experience an increase of at least 13 percent in the number of people with Alzheimer’s. These projected increases in the number of people with Alzheimer’s are due to projected increases in the population age 65 and older in these states. The West and Southeast are expected to experience the largest percentage increases in people with Alzheimer’s between 2018 and 2025. These increases will have a marked impact on states’ health care systems, as well as the Medicaid program, which covers the costs of long-term care and support for some older residents with dementia.”
Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation
Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:
In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.
This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.
To register, click here.
April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, April 10, 2018
According to the New York Times, late last month, the House of Representatives passed the right to try bill on their second attempt. House Passes Bill That Would Give Patients Access to Experimental Drugs explains that "[s]upporters said the bill would give dying patients a chance to obtain potentially helpful prescription drugs without waiting for the completion of clinical trials or going through a process established by the Food and Drug Administration to allow the use of “investigational drugs” outside clinical trials." There were supporters as well as opponents of the bill.
The House and Senate bills would establish a new pathway providing access to unapproved medicines for certain patients who had exhausted other treatment options. To qualify under the House bill, a patient would have to have some kind of terminal illness: a condition that is likely to cause death “within a matter of months” or “irreversible morbidity that is likely to lead to severely premature death.”
Nothing in the bill would require pharmaceutical companies to provide experimental drugs to patients who requested them. Drug manufacturers sometimes turn down requests because they have only a limited supply or they are concerned about legal and medical risks.]
To address such concerns, the legislation would shield drugmakers, doctors and hospitals from some of the legal risks of providing unapproved drugs to patients. Doctors and hospitals would generally be protected unless they engaged in gross negligence or willful, reckless or criminal misconduct.
I've been struck by the contrast in two recent articles. The always wise Toby Edelman, senior policy attorney at the Center for Medicare Advocacy, was writing about Deregulating Nursing Homes. He begins:
In lockstep with the nursing home industry, the Trump Administration is rapidly dismantling the regulations and guidance that have been developed over the past 30 years to implement and enforce the federal Nursing Home Reform Law. Until the Christmas Eve 2017 report in The New York Times, these devastating changes, often made without any public notice or comment, received no public attention.
Toby reminds us that a "regulatory system is intended to prevent avoidable bad outcomes in the first place." But in his view, both the regulatory system and "the enforcement system .. . [are] under severe attack."
On the other hand, I just read an equally sincere essay authored by a long-term nursing home administer, entitled Why I Chose to Leave the Nursing Home Profession: A Fed-Up Executive's Story. She writes about her frustrations in trying to do the right thing for residents:
Regulations that are so prescriptive that they dictate the exact steps required to comply with the regulation create nothing but an assembly line of care — which is exactly what we are supposed to be fighting against.
I find it baffling that regulations require a facility to operate a “home-like” environment, but then sends surveyors into a facility to pick apart attempts to individualize care. For example, many residents wish to have one side of their twin bed up against a wall to create an increased sense of safety, as well as assist with bed mobility. Upon notification of a surveyor that this was a form of restraint, we had to “undo” the beds that were set up this way to avoid a citation for restraints.
Then that started the tedious process to evaluate the resident, obtain consent, revise the care plan and ensure that documentation from the staff addressed the continued need of the resident.
The paternalistic approach of “we know what is best for you” will only serve to solidify the Institutional care model that seems to be the chosen and preferred method for our societal approach to caring for the frail elderly.
This writer, Julie Boggess, most recently the CEO for Bethesda Rehab and Senior Care in Chicago, admits that "regulations are needed and should serve as the foundation of quality care and service." But, her final words are especially sobering:
But when things like a missing word in a policy or one missed temperature log recording or a date label that fell off a frozen bag of beans is more important than resident and family satisfaction and outcomes of care, there is a serious problem, and it is driving passionate hard-working individuals out of this industry.
The conclusion that propelled me out of this industry is that I, and my staff, were in the quest for quality and culture change alone. The government is nothing but an impediment. I thought the goal was to improve quality care, but if the real goal is to push out good people from the industry, then the government is wildly successful.
Lots to think about here.
April 10, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)
Sunday, April 8, 2018
A while back we published a post about Swedish Death Cleaning and I'll hazard a guess that after you read that post, many of you went through your stuff and disposed of things. So here's another thought-when you don't have kids, to whom do you leave your stuff? The New York Times tackled that issue in this article, If You Don’t Have Children, What Do You Leave Behind?
The author's essay explains her dilemma as she puzzles through who of her relatives get what, and in what amount, offering her view that "wills are easier for parents because they have a natural push — the need to name guardians for their children and provide financially for them after they are gone. On the surface it’s about who gets your stuff, but it got me thinking about ways people without children create a legacy. Who will remember us?"
The author did a lot of homework, casting a wide net of inquiries and carefully considering her catch. She discovered "patterns and creative thinking [and] saw a lot of worry, too, mostly about who will take care of us when we’re old. When it comes to legacy and relationships with young people, people start close to home. Nieces, nephews and godchildren came up in nearly every response. As did the idea of meaningful work. And that’s true for [the author]."
This is an interesting piece and I think it would be useful for our students to read. It will help remind them that estate planning is not a "one-size-fits-all" exercise.
Thanks to Professor Naomi Cahn for sending this our way.
Here's an unusual case to start off a new week. In Laborer's Pension Fund v. Miscevic, the 7th Circuit faced interesting statutory interpretation questions about whether "survivor" benefits available under a murdered's man's pension must be paid to the very woman who killed him, his "surviving" wife.
The first question focused on ERISA's rules, asking whether the federal law (which does not contain "slayer" provisions) preempted any disqualifying effect of state slayer laws. Ultimately, considering the issue as a matter of first impression for federal appellate courts, the 7th Circuit rejected the ERISA preemption argument.
But that left the question of the effect of the Illinois law in light of additional, unique facts. The wife argued her state criminal court verdict of "not guilty by reason of insanity" barred the disqualifying effect of the Illinois slayer statute. The Court analyzed similar language of the Illinois slayer statute and the Illinois insanity law and concluded:
Put simply, an individual may not appreciate the criminality of her conduct, but still have "intentionally" and "unjustifiably" cased a death. Indeed, in this case, the judge at [the wife's] criminal trial made an explicit finding that [she] intended to murder [her husband] "without justification," despite concluding [she] was not guilty by reason of insanity."
Noting a split among state courts in analyzing the effect of "not guilty by reason of insanity" on entitlement to inheritance under other states' slayer laws, with Mississippi and New Jersey permitting recovery by a party deemed insane at the time of the murderous act, the 7th Circuit concluded that Illinois would not follow that path. The Court concluded that the Illinois slayer statute barred this wife from recovering her husband's pension benefits.
This case is interesting for reasons other than interpretation of the federal and state laws. The case was filed as an interpleader by the Pension Fund, as the Fund had received conflicting claims for survivor benefits from the wife and the couple's 11 year old daughter. The minor-aged daughter will now take the survivor benefits, but, the "minor child benefit" for the plan lasts only until the minor is 21. It is perhaps an unfortunate side effect of an already sad case that without the murderous facts, the wife would have been a survivor until her death, but the innocent (and, perhaps, needy) daughter's survivor benefits will terminate after 10 years. Should there be the option to treat any benefits payable to someone deemed "not guilty of murder by reason of insanity" as being subject to a constructive trust in favor of the next of kin?
My thanks to always eagle-eyed attorney Thomas Murphy in Phoenix, Arizona for sending the report on the 7th Circuit case, decided January 29, 2018.
During Dickinson Law's recent program on Dementia Diagnosis and the Law, one of our panelists, Elder Law practitioner Sally Schoffstall raised an issue planning professionals are seeing more often, families who are concerned about the long-range needs of children with developmental disabilities. I know that over the years I have often had law students whose interest in disability and estate planning law began with a brother or sister with special needs, and they are thinking about their own future roles in helping the family plan.
The good news is that better early health care often means an extended life for disabled children, but that very fact raises the probabilities on living longer than the people who have been primary caregivers, especially their parents. As we heard from medical professionals at our conference, individuals with Down Syndrome, for example, are now less likely to succumb to physical impairments such as developmental heart problems, but still face a significant risk of early onset of dementias, with an estimated 30 percent of those in their 50s already experiencing symptoms similar to Alzheimer's Disease.
On May 21-22, a St. Louis-based nonprofit organization, Association on Aging with Developmental Disabilities (AADD) will hold its 28th annual conference. The conference draws an audience of professionals from a wide range, including social workers, nurses and other service providers. As with most people, individuals with disabilities want to "age in place," and that takes extra planning to manage financial assets. Pamela Merkle, executive director for AADD explains:
"Sessions will focus on giving them the tools they need to successfully support people with developmental disabilities who are aging,” says Merkle.
She explains that many of the issues faced by older persons with developmental disabilities mirror those of aging individuals in general, such as isolation, depression and how to handle retirement. “Like most people, they want to ‘age in place,’ not spend their golden years in a nursing home. Given that living within the community is more cost-effective, it’s important to both the seniors and our communities that there be more public programs to support that choice,” she continues. . . .
For individuals who are 50 or older, AADD offers retirement services. While some of the participants have held community-based jobs, others spent decades in sheltered workshops. As with many members of the general population, they often tend to define themselves through the jobs they held for so many years. “So we focus on identity: ‘I’m a volunteer” or “I’m active in my church,’” explains Merkle. “If you don’t have something in place to fill the void after retirement and to maintain the skills you’ve developed, you’ll retire to your couch. You won’t be an active part of the community, and will most likely spend your “golden years” alone.”
For more, see this commentary from the Special Needs Alliance, and look for related links. My thanks to Sally for providing links to this conference information!
April 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (0)
Friday, April 6, 2018
The Aging & Law Section of AALS has issued a call for papers for its meeting in January, 2019 in new Orleans as part of the 2019 AALS annual meeting. The program is being co-sponsored by the Family & Juvenile Law, Minority Groups, Trusts & Estates, and Women in Legal Education Sections.
The topic for the program (and papers) is The Legal Consequences of Living a Long Life: The Differential Impact on Marginalized Communities
Here's a brief description, prepared by Section Secretary Naomi Cahn.
Thanks to advances in health care people are living longer. Longevity has legal consequences. People can outlive their family, friends, and finances. Longevity has differing impacts for women, people of color, low-income people, and LGBT individuals. Statistically, women make less money than men and they live longer than men. People of color are less financially secure than Americans as a whole. In the United States, approximately 80 percent of long-term care for older people is provided by family members, such as spouses, children, and other relatives. This places an undue financial burden on low-income persons. LGBT individuals may face conscious and unconscious discrimination when seeking long-term care and other assistance, and they have historically formed various kinds of family structures. This panel will explore the intersection of the legal system and longevity, examining systems that are in place or should be in place to help people plan for living longer. Topics might include: paying family caregivers, working conditions of nursing home assistants, and differential patterns of wealth accumulation. This call for paper seeks authors of published or unpublished papers that consider law and longevity.
To be considered, submit a one-two page proposal by email to Naomi at firstname.lastname@example.org Deadline is May 1, 2018. BTW, those accepted to present may also have their papers published in the Journal of Health Law and Policy at Cleveland State University.
Don't wait-submit your proposal!!!