Monday, October 22, 2018
CNBC recently highlighted comparative inflation numbers on assisted living costs and other benchmarks that probably won't help you sleep better tonight:
This retirement living expense has nowhere to go but up.
The annual cost of a private room in a nursing home has cracked the six-figure mark, according to Genworth Financial.
The national annual median cost of a private room in a nursing home is $100,375, the insurer found in its 2018 Cost of Care study.
Overall, the rising cost of care has outpaced inflation. The Consumer Price Index for all urban consumers was 2.1 percent for the first half of 2018. The annual median cost of a room at an assisted living facility grew by 6.67 percent between 2017 and 2018. Meanwhile, the cost of a shared room in a nursing home jumped by 4.11 percent.
Sunday, October 21, 2018
The Federal Trade Commission has released a new report, Protecting Older Consumers: 2017-2018: A Report to Congress of the Federal Trade Commission. The FTC report, available here, runs 41 pages and is divided into sections addressing effective strategies, enforcement activities, and outreach and education. For those of you unfamiliar with the FTC's work on behalf of consumers who are older, the report explains
As the nation’s primary consumer protection agency, the Federal Trade Commission (“FTC” or “Commission”) has a broad mandate to protect consumers from unfair, deceptive, or fraudulent practices in the marketplace. It does this by, among other things, filing law enforcement actions to stop unlawful practices and educating the public about consumer protection issues. Through strategic initiatives, research, and collaboration with federal, state, international, and private sector partners, the FTC targets its efforts to achieve the maximum benefits for consumers, including older adults.
The Commission’s anti-fraud program tracks down and stops some of the most pernicious frauds that prey on U.S. consumers, such as imposter scams, deceptive credit schemes, prize promotion fraud, business opportunity scams, and more. In addition, the advertising substantiation program protects consumers from the harm caused by unsubstantiated product claims, such as fake opioid addiction treatments and cancer cure products. The agency also works to protect consumer privacy and data security, combat illegal telemarketing and email spam, and enforce a variety of consumer protection rules and other statutes covering topics such as funeral industry practices, used car sales, and consumer
product warranty protections, to name only a few. These programs provide tremendous benefits to older and younger consumers. (citations omitted).
Be sure to check out Appendix A-the table of cases from the FTC for year 2018.
Thursday, October 18, 2018
Last month, the Providence Journal published a series of articles about the year-long project by Brown University students on elder abuse in Rhode Island. The first, Elder abuse in R.I.: Reported attacks on the rise, yet most perpetrators avoid prison noting "that 87 percent of those charged with elder-abuse offenses in R.I. between 2000 and 2017 did not go to prison for those crimes, leaving their elderly victims vulnerable to repeated attacks." There are 9 parts to the series, published in the Providence Journal, all of which can be accessed from here. Parts 6 and 7 deal with guardians while Part 8 deals with scammers and 9 with friends. Part 2 deals with barriers to prosecution and part 5, police training.
This is a great series. Read it!
The Pennsylvania Legislature did not reach either SB 884, involving major changes in adult guardianship laws, or HB 2291, that would have blocked state authority to investigate complaints about the scope of services provided in senior public housing or independent living units in continuing care retirement communities (CCRCs), before adjourning to permit legislators to return to their districts for the final push before the November 2018 elections. It is unlikely that either bill will receive further consideration this session. New legislation would need to be introduced in the next legislative session, for fresh consideration in 2019.
One bill that did pass both Houses on October 18 in the waning hours of the 2017-18 session is HB 2133, Printer's No. 3107 to establish a Kinship Caregiver Navigator Program within the PA Department of Human Services as "a resource for grandparents who are raising their grandchildren" outside of the formal child welfare system. The online navigator program is to be created by an outside contractor. The fiscal note attached to the bill projects an estimated cost of about $2.2 million, with about half of the funds coming from federal sources.
Wednesday, October 17, 2018
EAGLE is the new guide on elder abuse for law enforcement is a joint effort from the U.S. Department of Justice along with USC's Keck School of Medicine (host of the National Center on Elder Abuse (NCEA)) as well as the USC Keck School of Medicine Department of Family Medicine & Geriatrics, the USC-Irvine Center of Excellence on Elder Abuse & Neglect & USC-Davis School of Gerontology. EAGLE includes a first responder checklists, a checklist for gathering evidence, information about state statutes, a section on interviewing victims and photography tips, to highlight a few. This is a significant tool and you need to take a look at it. Make sure your local law enforcement folks know about this website.
Tuesday, October 16, 2018
Social Security has released the 2019 numbers. Social Security Announces 2.8 Percent Benefit Increase for 2019 notes a 2.8% COLA and an increase in the SSA taxable maximum amount to $132,900. The indivdiual's amount for SSI for 2019 will increase to $771 per month. The detailed fact sheet is available here.
Monday, October 15, 2018
The New York Times ran an article on the demand for nursing home beds. In the Nursing Home, Empty Beds and Quiet Halls opens by explaining that a once vibrant facility now stands closed due to a drop in demand. According to the article, "[t]he most recent quarterly survey from the National Investment Center for Seniors Housing and Care reported that nearly one nursing home bed in five now goes unused. ... Occupancy has reached 81.7 percent, the lowest level since the research organization began tracking this data in 2011, when it was nearly 87 percent." The occupancy rate has been trending downward; concomitantly facilities close, and according to the article, somewhere between 200-300 annually close. The article points out what you are likely thinking-with the number of baby boomers wouldn't the demand be increasing rather than decreasing?
The article hypothesizes as to why this may be occurring and suggests:
Increased regulations and more financial belt-tightening
Hospitals' use of observation status,which thus affects Medicare coverage for subsequent SNF care.
More surgeries on an out-patient basis
Increasing number of Medicare Advantage plans.
- Increased competition through other housing options
- The shift to Medicaid covering care in the community, with "Money Follows the Person [having] moved more than 75,000 residents out of nursing homes and back into community settings."
The article speculates whether this trend will reverse itself once the boomers start reaching 80 and beyond. The article also discusses whether the lower demand provides more options for those in need of nursing home care.
Registration is now open for the Rural and Tribal Elder Justice Summit scheduled for November 14-15, 2018 in Des Moines, Iowa. Here is info about the program
On World Elder Abuse Awareness Day 2018, the U.S. Departments of Justice and Agriculture announced a joint Statement of Action to promote elder justice in rural and tribal communities. Although more than 20 percent of older adults live in rural America, rural and tribal communities face unique challenges in their efforts to combat elder abuse, neglect, and financial exploitation.
To advance this priority, the Department of Justice is hosting a Rural and Tribal Elder Justice Summit on November 14–15, in Des Moines, Iowa. This Summit will bring together a diverse group of experts and elder justice professionals to: (1) identify the challenges rural and tribal communities face in responding to elder abuse; (2) identify promising practices, resources, and tools available to rural and tribal communities; and (3) explore what more can be done to break down silos and foster greater collaboration at the tribal, local, state, and federal levels.
Please join us for this important event and help us to advance elder justice in rural and tribal communities.
For more information about the summit and rural elder justice topics, please visit the Elder Justice Initiative website
To register for the summit, click here.
October 15, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, October 14, 2018
A couple of weeks ago I blogged about "reminiscence therapy" used for people with dementia. The New Yorker has added to the literature on this topic with the recent article, The Comforting Fictions of Dementia Care.
The article describes different efforts by facilities, from common rooms designed to resemble eras gone by giving residents baby dolls that simulate real babies. For those who ask routinely to go home, "many nursing homes and hospitals have installed fake bus stops. When a person asks to go home, an aide takes them to the bus stop, where they sit and wait for a bus that never comes. At some point, when they are tired, and have forgotten what they are doing there, they are persuaded to go back." One company based in Boston used technology to simulate conversations. Known as "Simulated Presence Therapy" this system "mak[es] a prerecorded audiotape to simulate one side of a phone conversation. A relative or someone close to the patient would put together an “asset inventory” of the patient’s cherished memories, anecdotes, and subjects of special interest; a chatty script was developed from the inventory, and a tape was recorded according to the script, with pauses every now and then to allow time for replies. When the tape was ready, the patient was given headphones to listen to it and told that they were talking to the person over the phone." The article notes that those with short term memory loss can listen to the tape routinely. Technology has made simulations even more realistic and interactive, down to "footage of a passing scene [giving] the impression of movements."
The article features details of various enterprises and highlights at least one facility's efforts. It's definitely worth reading.
Thanks to my colleague, Professor Bauer, for sending me the link.
Thursday, October 11, 2018
Bloomberg Law News ran a recent story about litigation in California. California Veterans Sue for Right to Die in State Home reports on a suit recently filed concerned vets living in a state veterans home.
Terminally ill California veterans wishing to use the state’s assisted dying law must be evicted or leave the state veterans’ home, a lawsuit challenging a regulation prohibiting the use said.
California is among a handful of states that permit assisted suicide. The California Department of Veterans Affairs (CalVet) argues the regulation banning assisted suicide was necessary to avoid violating the 1997 federal Assisted Suicide Funding Restriction Act, the lawsuit said. Veterans contend the agency’s argument is unsupported by law or fact and, in fact, harms terminally ill residents.
The suit was filed the first week of October in trial court in Alameda County. The plaintiffs include 2 veterans groups, a vet from Vietnam, and a non-veteran spouse. Defendants include the California Department of Veterans Affairs and the California Veterans Board.
October 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Previously we have blogged about the need for caregivers and how that role typically falls to family members. What about those "elder orphans" or "solo agers" who don't have kids or family to fill that role? Kaiser Health News addressed that issue in the article, Without Safety Net Of Kids Or Spouse, ‘Elder Orphans’ Need Fearless Fallback Plan. “[E]lder orphans” (older people without a spouse or children on whom they can depend) and “solo agers” (older adults without children, living alone), [are expected] to move through later life without the safety net of a spouse, a son or a daughter who will step up to provide practical, physical and emotional support over time [and almost]22 percent of older adults in the U.S. fall into this category or are at risk of doing so in the future, according to a 2016 study." Not only are there a fair amount of folks in this category according to the survey, "70 percent of survey respondents said they hadn’t identified a caregiver who would help if they became ill or disabled, while 35 percent said they didn’t have “friends or family to help them cope with life’s challenges.” This means these folks are not prepared for aging, according to one expert quoted in the article. The article discusses the survey results and provides so suggestions for experts on how these elder orphans or solo agers can prepare.
But the key here is to be proactive-there is no magic wand here folks.
Wednesday, October 10, 2018
Pennsylvania's Legislature Stalls Guardianship Reform But Moves Forward on Controversial "Protection" Bill
As recent readers of the Elder Law Prof Blog will know, the Pennsylvania legislature is in the waning days of the 2018 legislative year. Despite strong support for basic reforms of adult guardianship laws, the legislature has once again stalled action on Senator Greenleaf's guardianship reform package, Senate Bill 884. Apparently the latest delay arose when one senator objected to a provision requiring criminal background checks for proposed new guardians, because of his own experiences as a guardian for an adult child.
Guardianship reform has been on the legislative docket since at least 2014 when the Pennsylvania Supreme Court's Elder Law Task Force issued its comprehensive report recommending much needed changes, including higher standards for appointed guardians. But this one senator's late-breaking concerns triggered another delay. Similar legislation was approved by the Senate in the previous legislative term, only to be stalled that time in the House.
Thus, the contrast with another bill affecting seniors, one that is rushing through the Pennsylvania Legislature in 6 months, is particularly dramatic. House Bill 2291, as most recently amended in Printer's Version No. 3917, was introduced for the first time in April 2018 and cleared the Pennsylvania House with a unanimous vote on October 9, 2018.
The bill has been cast as "protection" of seniors against unwanted intrusions on their privacy by government investigators. Sounds like a commendable purpose. But the much larger purpose seems to be about protecting "providers" of certain types of housing for seniors, including "independent living units" in continuing care retirement communities (CCRCs, also called Life Plan Communities) and publically-funded "senior multifamily housing units," from investigation by Pennsylvania authorities where there are potential concerns about suitability of that type of unit for the needs of particular seniors, especially those at risk of self-neglect or third-party exploitation because of dementia. One member of the House, a legislator from Westmoreland County where a CCRC has been investigated (apparently the only such investigation in the state), has been quite successful in attracting support for his bill to prevent such investigations from happening in the future.
Now the Pennsylvania Senate will have all of three days -- its last three working days in 2018 -- to consider HB 2291 for the first time.
Has HB 2291 been carefully considered by all the stakeholders, including seniors and their families? It may not matter when the train is running at full steam.
October 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 9, 2018
As Hurricane Michael is bearing down on the Florida panhandle, it bears mentioning that we are still in hurricane season down here in the Gulf coast and that natural disasters can occur anywhere at any time. So this article in the Tampa Bay Times giving an update about the SNFs in Florida complying with the generator law was timely. As hurricane nears, most long-term care facilities haven’t finished backup power plans notes that even as Hurricane Michael has the Florida panhandle in its path, "[m[ore than half of the 412 assisted-living facilities and nursing homes have yet to implement their emergency power plans, after receiving extensions from the state to comply."
A review of data maintained by the Agency for Health Care Administration shows that, in 33 counties encompassing the western half of the state south to Hernando County and east to Putnam County, more than half of the 412 assisted-living facilities and nursing homes have yet to implement their emergency power plans. Nearly all of those facilities have been granted extensions, many through the end of the year, citing regulatory delays and equipment and contractor shortages.
What are these non-compliant facilities likely to do, especially with landfall imminent? The article notes that "those facilities are turning to temporary generators, portable coolers and sometimes evacuations to keep residents safe — just as they have in years past before the rules were approved." The area projected for Hurricane Michael has a number of facilities that have received exemptions or are still in the process of complying with the rule. The article discusses what the state and regulators are doing and how facilities are preparing.
We have to hope for the best at this point. I think everyone is well served by asking long term care facilities about their disaster plans. The rest of us in Florida are keeping an eye on Michael's path and thinking about those in it.
According to a recent Kaiser Health News article, Medicare Advantage Plans Shift Their Financial Risk To Doctors, Medicare Advantage (MA) Plans pay medical groups "a fixed monthly payment ... to cover virtually all of their members’ health needs, including drugs and physician, hospital, mental health and rehabilitation services."
This model — known as “full-risk” or “global risk” — is increasingly used by Medicare plans such as Humana and UnitedHealthcare to shift their financial exposure from costly patients to WellMed and other physician-management companies. It gives the doctors’ groups more money upfront and control over patient care. ... As a result, they go to extraordinary lengths to keep their members healthy and avoid expensive hospital stays.
As the article notes, there is a financial incentive for the health care providers with this model, and experts disagree whether it results in better care or less care for patients. As the article notes, beneficiaries choose an MA plan and pick doctors within the plan, often without knowing if the MA plan has delegated oversight of the beneficiaries' health to these physician groups. And the impact of this full-risk approach should not be understated:
Nearly one-third of the 57 million Medicare beneficiaries are covered by private Medicare Advantage plans — an alternative to government-run Medicare — and federal officials have estimated that the proportion will rise to 41 percent over the next decade. The government pays these plans to provide medical services to their members.
The “global risk” system has been used in South Florida and Southern California since the late 1990s and nearly half of Medicare Advantage members in those regions get care in the model. The use has spread further in the past two years as large physician companies have become more common, and about 10 percent of Medicare Advantage plan members across the nation are in them now, health consultants say.
Under the “global risk” arrangements, the health plans give the physician companies the bulk of their Medicare funding when they take on the mantle of being financially responsible for all patient care.
Keep an eye on this -- it's important.
Friday, October 5, 2018
Dwindling Numbers in Traditional Skilled Care Facilities Have Implications for Other Forms of Senior Living
The New York Times tracks more demographic information about occupancy in skilled care facilities:
For more than 40 years, Morningside Ministries operated a nursing home in San Antonio, caring for as many as 113 elderly residents. The facility, called Chandler Estate, added a small independent living building in the 1980s and an even smaller assisted living center in the 90s, all on the same four-acre campus.
The whole complex stands empty now. Like many skilled nursing facilities in recent years, Chandler Estate had seen its occupancy rate drop.
“Every year, it seemed a little worse,” said Patrick Crump, chief executive of the nonprofit organization, supported by several Protestant groups. “We were running at about 80 percent.”
Staff at the Chandler Estate took pride in its five-star rating on Medicare’s Nursing Home Compare website. But by the time the board of directors decided it had to close the property, only 80 of its beds were occupied, about 70 percent.
Revenue from independent and assisted living couldn’t compensate for the losses incurred by the nursing home.
As seniors elect to stay "at home" and as families struggle to make that happen, we are seeing ever evolving concepts in how to provide appropriate care and companionship. For more read, In the Nursing Home, Empty Beds and Quiet Halls.
Thursday, October 4, 2018
The call to action explains that "Medicare as we know it is under attack. Current efforts and proposals will privatize Medicare and increase costs. Against the wishes of most Americans, some lawmakers want to cut Medicare benefits, driving up costs to you, and making health care and prescription drugs even less affordable." (emphasis in the original). The website covers "why now", stories, facts, "take action" and has a link to donate. The "take action" page includes questions to ask Congressional candidates and an action kit, among other tools. Test your Medicare IQ on the facts page. And if you want to feel the urgency, look at the countdown clock to the midterm elections on the home page.
I teach contract law and I teach elder law, and often those silos overlap. But recently someone asked me whether a "power of attorney" was a contract. Somehow I had not not considered this topic before. My first reaction was "no, not usually," although certainly POAs have contract-like implications once the agent takes action using the POA as authority. I tend to think of POAs and similar appointments of an agent as bound by rather distinct "fiduciary law" obligations, as well as the limitations of the language in the POA itself and any statutory law, rather than traditional contract law principles. But perhaps my first instinct is wrong. One significance of categorization is when determining what statutes of limitation applies to any violation. It turns out the issue usually arises in the context of liability for allegations of misuse of authority.
What do you think? At least one court believes POAs are contracts, at least for purposes of applying principles of interpretation. A Court of Appeals opinion notes, when deciding whether family-member agents had authority to "self-deal" when handling real estate transactions in the name of the principal, that "Because a power of attorney is a contract, we interpret its provision pursuant to the rules of contract interpretation. . . . " See Noel v. Noel, 225 So. 3d 1114, 1117(Louisiana Ct. of Appeals, 2017).
For additional perspectives see the discussion of the Alabama Supreme Court, including the dissent, in Smith v. Wachovia Bank, 33 So. 3d 1191, 1202 (Ala. 2009).
October 4, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (3)
Wednesday, October 3, 2018
The USC Center for Elder Mistreatment has released an update on federal and state elder abuse legislation passed in 2018. According to the website, "[t]he elder justice legislation found in this document was elicited and finalized from the National Center on Elder Abuse (NCEA) Listserv and independent websites in August 2018. The compilation is intended to reflect highlights across the nation and does not include all legislation related to elder justice. However, updates will be sent quarterly and states are encouraged to send updates on significant legislative action to Ageless Alliance. This document reflects activity in 21 states and highlights at the federal level. " The elder justice policy highlights cover February through August of 2018 and can be accessed here. The document features federal legislation and well as state legislation listed alphabetically.
I try hard to avoid political issues on the Elder Law Prof Blog, even as I sometimes recognize that certain law and aging issues have political implications, such as funding for Social Security, Medicare or Medicaid.
But today, when I received a national "test" message via text on my cell phone, I was not happy that it was labeled a "Presidential Alert." I think I would feel the same way no matter who is the current president, but certainly right now, I can see no good reason for this message to have any such label. I then realized that I had only one option on receiving the message -- to hit "okay" or something similar to make it disappear. Of course, that means that someone, somewhere, has a record of that response. Plus, there was no way to "bar" such a message in the future.
I'm not inclined to conspiratorial theories of any kind. But, there isn't any way to easily register my disapproval of a system which appears calculated to tie the U.S. president into a system of nationwide notifications at a time of fraught political implications. Forgive me for using this Blog to register my disapproval, but this is my only way to do so at this moment.
For the record, I don't want any "Presidential" messages of any kind coming to my cell phone. If there needs to be local, state, or even national emergency messages of some kind, identified with an appropriate emergency agency, that would, perhaps, be different. But calling any such message a "Presidential Alert" is a step too far for me.
Tuesday, October 2, 2018
Sunday's Washington Post ran this article with an eye-catching title: Self-proclaimed ‘Old Coots’ offer life advice at farmers market. Their slogan: ‘It’s Probably Bad Advice, But It’s Free.’ Here's how this all came about:
The group of retired friends who meet every Saturday morning at a Salt Lake City deli were growing tired of the same conversation each week.
Sure, they were solving the world’s problems. But they wanted more excitement in their Saturday morning. They wanted to share their wisdom beyond their friend group of seven. As a lark, they set up a card table at the nearby Salt Lake City’s farmers market and told people they were dispensing free advice.
And guess what happened? "[T]o their surprise, people started showing up and sharing their problems. A lot of them." They realized they were filling an important need and they took this duty seriously. How popular are they? According to the article, "[e]ach Saturday since the summer, the “Old Coots” have taken on the issues of about 30 to 40 people who come by seeking their advice. It’s a way for a person to get an outside opinion from somebody who has nothing to gain...." Among the most common questions? Meeting someone and keeping romance in a relationship. They do get some unique questions, such as what to do about ghosts in the house of one person who stopped by for advice. What's out of bounds for topics? Politics and religion but they do have forms for folks who want to register to vote.
They don't give advice to each other-- they only give advice to strangers, because, as one of them quipped about giving advice to each other, “Who would listen?”
The end of the farmer's market season also marks the end of their advice giving at the market. They "will fold up their banner and card table when the farmers market ends for the season later this fall, but they hope to return next year, coffee cups in hand, advice at the ready. As one of them so insight fully noted, “To be truthful, I’m not sure that any of us can claim to have much wisdom, said [one of the old coots], but it sure has been a lot of fun. Maybe all of us coots really do have more to offer than we thought.”