Sunday, November 23, 2014
From Kaiser Health News, this report of "confusion, frustration and resistence," associated with California's first six months of efforts to move 500,000 low-income seniors and disabled persons into managed care:
"'The scope and the pace are too large and too rapid for what is supposed to be a demonstration project,' said Dr. William Averill, executive board member of the Los Angeles County Medical Association, which filed a lawsuit to block the project. 'We are concerned that [the project] is ill-conceived, ill-designed and will jeopardize the health of many of the state’s most vulnerable population – the poor, the elderly and the disabled.'
There is a lot riding on the pilot — the largest of its kind in the nation. The patients involved are among the most expensive to treat – so-called 'dual eligibles,' who receive both Medicare, the health insurance program for the elderly and disabled, and Medicaid, which provides coverage for the poor. Over the three years of the demonstration project, California is focusing on 456,000 of the state’s 1.1 million dual eligibles.
State officials acknowledge some transition problems but say the project will provide consumers with more coordinated care that improves their health, reduces their costs and helps keep them in their homes. In addition, officials estimate the program could save the state more than $300 million in fiscal year 2014-2015."
For more, read "California's Managed Care Project for Poor Seniors Faces Backlash," by Anna Gorman.
Friday, November 21, 2014
On November 19, attorneys representing families and the Commonwealth of Pennsylvania argued consolidated cases before a panel of the Third Circuit Court of Appeals, involving use of short-term annuities in connection with applications for Medicaid-funded care. The argument follows appeals from a January 2014 decision on summary judgment motions by the Western District of Pennsylvania in the case of Zahner et al. v. Commonwealth of Pennsylvania.
A key issue on appeal is whether use of "shorter" term annuities is permitted by the language of federal Medicaid statutes referring to actuarially-sound annuities, or whether such use automatically constitutes a transfer of assets for less than fair value, and thus is treated as a prohibited gift. HCFA Transmittal 64 is the subject of much of the very technical debate.
The jurists on the panel are Judge Theodore McKee (the male judge's voice on the recording), Judge Marjorie Rendell, and Senior Judge Dolores Sloviter (the softer voice on the recording). Interestingly, rather early in the argument, at least two of the judges interject to make the observation that "there is nothing wrong with Medicaid planning, per se," noting, rather, that the issue is the extent to which specific planning approaches have been directly addressed by federal law.
Listening to the oral argument in this case provides an opportunity for students in advanced legal studies on asset planning to consider cutting edge legal issues and policy concerns. The argument is also an opportunity for even first-year law students to discuss argument techniques, and to consider what does or does not work well with judges (and vice versa). It was a "hot" bench and there was a lot of interruption from both sides.
Thursday, November 20, 2014
The Institute of Medicine (IOM) has released a great graphic on palliative care. What Should You Know About Palliative Care? has six graphics on topics including scope, function, location, family services and the benefits of palliative care. The infographic can be downloaded or a poster can be ordered by sending an email. The webpage also includes a link to the IOM report, Dying In America
If you recognize the quoted language from the title above, you can imagine me humming the lyrics to "Silver Bells" as I type. Perhaps we should add a new refrain. As detailed in the Los Angeles Times piece on "Residents Celebrate the 100th Repaired Sidewalk in South L.A. District," safe sidewalks are important to everyone, but particularly to people who have mobility issues, including some older adults. In the article, a stretch of deteriorated sidewalk outside an 84 year old woman's home prevented her for using her walker to get around her neighborhood. The challenge of accomplishing something as seemingly simple as this infrastructure issue, is demonstrated by the statistics in the article, showing there are 11,000 miles of sidewalks in L.A., and an estimated 40% are in need of repair.
The question of how to pay for sidewalk repairs is significant for cities. In Los Angeles, for example, policies on sidewalks can conflict with developers' preference for streets lined with trees. Tree roots are often the cause of sidewalk damage. For a number of years in the 70s, the city offered free repairs for sidewalks damaged by tree roots. But as budgets tightened, public funding was withdrawn, and subsequent efforts to create alternative funding for sidewalk repairs have been controversial.
In my own small community, there is an ordinance that permits the governing body to mark sidewalks in need of repair with a big X (and for some reason they do so with pink paint), and the home or business owner has a fixed amount of time to make the repairs, or be subject to public repairs at a potentially higher price. Obviously this approach won't work in every community -- and it is probably less than cost effective unless adjacent property owners work together to save money on contractors.
By the way, while humming along on this topic, I discovered that there is a relevant, highly placed, law review article -- mostly dealing with sidewalk safety in winter weather -- published in 1897 in Yale's legal journal. See "The Law of Icy Sidewalks in New York State," 6 Yale L. J. 258. In this article I learned the interesting historical fact, that at least in some jurisdictions of the day, "it is not negligence for a person to walk upon an icy sidewalk without rubbers."
Wednesday, November 19, 2014
This is one list where we don't want to be last-yet we are. According to a Commonwealth Fund November 19, 2014 story, U.S. elders are the sickest when compared to 10 other countries. 11-Nation Survey: Older Adults in U.S. Sickest, Most Likely to Have Problems Paying for Care notes that "[c]ompared with their counterparts in other developed countries, older adults in the United States are sicker, see more doctors, take more prescription drugs, and have a harder time affording the care they need, according to a new Commonwealth Fund survey of people age 65 and up." The survey is published in Health Affairs . The abstract for the article explains
Industrialized nations face the common challenge of caring for aging populations, with rising rates of chronic disease and disability. Our 2014 computer-assisted telephone survey of the health and care experiences among 15,617 adults age sixty-five or older in Australia, Canada, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom, and the United States has found that US older adults were sicker than their counterparts abroad. Out-of-pocket expenses posed greater problems in the United States than elsewhere. Accessing primary care and avoiding the emergency department tended to be more difficult in the United States, Canada, and Sweden than in other surveyed countries. One-fifth or more of older adults reported receiving uncoordinated care in all countries except France. US respondents were among the most likely to have discussed health-promoting behaviors with a clinician, to have a chronic care plan tailored to their daily life, and to have engaged in end-of-life care planning. Finally, in half of the countries, one-fifth or more of chronically ill adults were caregivers themselves.
The full article is available on the web as a pdf here.
Earlier this month, Yale Law School hosted a conference marking the 50th anniversary of the passage of Medicare and Medicaid. The program speakers were encouraged to examine the precedents set by these two major programs, against the backdrop of recent health care reform initiatives. Videos from sessions on "The Law of Medicare and Medicaid at 5o" are now available to the public, including segments on:
- Medicare, Then and Now
- Historical Context, Legislation & Administration
- Policy Making and Innovation
- Health Law Federalism, Especially After NFIB
- Looking Ahead
In addition, the presentation by keynote speaker Ezekiel Emanuel, Vice President of Global Initaitives and Chair, Medical Ethics and Health Policy at the University of Pennsylvania is available.
The video segments, while interesting, may be a little difficult to sit through, as they are not edited, and some of the speakers are not using the microphones. Fortunately, Professor Allison Hoffman from UCLA School of Law and others have written a wonderful series of pieces, stemming from the Yale program sesssions, and the articles are posted on Health Affairs Blog.
Tuesday, November 18, 2014
The Elder Law Program at the William S. Richardson School of Law, located at UH Manoa, has updated its indispensable guide to aging, including offering clear coverage of the many legal and medical issues involved. The handbook, titled "Deciding What's Next and Who in the World Cares? A Legal Handbook for Hawai?i's' Older Persons, Families and Caregivers," is available free on O`ahu through the Senior Helpline at the City and County of Honolulu's Elderly Affairs Division. Elder Law Program Director, Law School Professor, and co-author James H. Pietsch said that the updated handbook is especially valuable for new caregivers uncertain about where to turn for help. The book also has an extensive resource glossary, including current phone numbers and email addresses. "Folks planning ahead need to have sufficient information about incapacity, disability and, in general, growing old in America, so we wanted to provide some basic legal information and guidance," said Pietsch. This new edition of the award-winning handbook was prepared by Professor Pietsch and Hawai`i Elder Law Program Administrator Lenora H. Lee. Funded in part by the U.S. Administration on Aging, it was printed through a grant from the City & County of Honolulu Elderly Affairs Division. "Many people don't have a good sense about end-of-life issues, wills, powers of attorney, trusts, health-care coverage, elder abuse issues, and even hiring a care-giver," continued Pietsch. "Very often, it's thrust upon them very quickly and they need help in a hurry. We know a lot of people will look to it for crisis intervention."
Source/more: University of Hawaii Manoa
In Gunnarson v. Transamerica Life Insurance Company, a federal district court in the state of Washington issued a November 6, 2014 order remanding the case to state court on diversity grounds, rejecting the company's argument that joinder of an individual sales agent as a defendant in the case was merely a step to prevent the out-of-state corporate entity from removing the case to federal court.
In rejecting the fraudulent joinder argument, the federal district court outlined several pending factual and legal issues between the parties arising from the dispute over long-term care insurance (LTCI) coverage. The issues include:
- whether the defendant agent's relationship with the insurance company, Bankers United (Transamerica's predecessor), was "disclosed" to the purchasers, relevant because under Washington Law, joint and several liability applies to agents of undisclosed principals;
- whether written promotional materials on LTCI provided by Bankers United barred a claim for misrepresentation in light of alleged oral misrepresentations by agent at the time of sale regarding dementia care; and
- whether a claim of misrepresentation, for a policy of LTCI sold 18 years ago, is barred by the statute of limitations, or whether there is an issue of fact about whether and when the purchaser knew or should have discovered that benefits would be paid only for "nursing home" facility care.
In Washington, as in many states, state law changed to expressly require LTCI insurers to cover non-nursing home based care; however, the statutory change apprently occured after the effective date of the policy in question.
The federal court order linked above resulted in remand to the state court for further proceedings under Washington law. (Allegations, of course, are not the equivalent of proof.)
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
We're discussing fiduciary duties for trustees in my Wills, Trusts & Estates course and perhaps that is why an article in the November- December issue of the ABA publication, Probate & Property, caught my eye. The cover article is "Painting a Not-So-Pretty Picture: Art as an Alternative Investment in Fiduciary Accounts." Author Michael Duffy, from Goldman Sachs, reports on recent eye-popping headlines for auction sales of artwork. He discusses the sales figures against the background of fiduciaries seeking better-than-conservative returns through use of alternative investments. He outlines the tangible and not-so-tangible variables at the heart of art investment, leading to his thesis:
"It is the position of this author, however, that trustees should not be persuaded by the seemingly lackluster performance of their traditional investments reltative to these sensational headlines and that they should ignore the steady drumbeat of savvy marketers who have a vested interest in convincing them otherwise. There are simply too many considerations when buying and selling art that call into question the prudence of any such endeavor when undertaken by a fiduciary held to the highest investment standards under the law."
It is interesting to note that "absence of federal and state regulation" is one of the reasons for caution cited by this financial services author.
Sunday, November 16, 2014
In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. As the author, Maine elder law attorney Sally Wagley, explains,
"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."
Has the law been useful in Maine? Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect. She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."
For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."
Saturday, November 15, 2014
Consumer Voice has honored NSCLC Attorney Eric Carlson with its Toby S. Edelman Legal Justice Award. The Toby S. Edelman Legal Justice Award recognizes individuals who go to extraordinary lengths to achieve justice for long-term care customers. Eric received the award for his commitment to advocating for the rights of long-term care consumers, and for his deep expertise in the issues surrounding long-term care. Eric will receive the award at Consumer Voice’s 38th Annual Conference at the Hilton Crystal City in Arlington, Virginia on Sunday, November 16.
Please join us in congratulating him!
Friday, November 14, 2014
The Denver Post ran a good article on how to smooth the way for harmonious inheritances by families. About to inherit? Tips for avoiding family fights and tax trouble ran at the end of October, 2014. The story opens with some eye-popping statistics
A 2012 study of 3,200 wealthy families by U.S. Trust showed that 70 percent failed to successfully transfer the family's assets to the succeeding generation. The study found three reasons for this failure: lack of communication among family members; absence of a generally acknowledged purpose for family possessions; and lack of preparation on the part of heirs.
Following the logic of this study--if it can happen to them, it can happen to any of us, the reporter offers that "[l]ack of preparation, operating without guidance or support and faltering in the face of irreversible tax decisions can negatively impact even diminutive estates." The author offers tips to avoid these mishaps: effective communication (call a family meeting and be prepared). As well, those standing to inherit need to educate themselves ("Heirs should take the time to educate themselves on the importance of good tax decisions.") The article gives beneficiaries some insights for them regarding some of the decisions to make and the import of the governing terms of the plans. Remember to tell clients, tax is important!
The National Senior Citizens Law Center (NSCLC) is offering a free webinar on "Emerging Issues and Consumer Rights in Providing Medicaid LTSS through Managed Care."
Date and Time: Wednesday, November 19, 2014 2-3 p.m. Eastern time
Description: "This webinar will examine the critically important issue of consumer rights in the 28 states that have moved to Medicaid managed long-term services and supports (LTSS) systems. Additionally, it will evaluate emerging issues we've seen in certain states."
More information and registration here.
The November issue of AARP's Bulletin carries a special Medicare cover story, "Inside the Medicare Strike Force" by Rick Schmitt. The article details recent successes by a Justice Department unit formed in 2007:
"The strike force has grown from a single outpost in Miami in 200 to nine cities, with the support of 40 of the 100 attorneys in the fraud section of the Justice Department. . . . Just this September, some 280 prosecutors and agents from around the country attended a Justice Department workshop in Washington, D.C., to learn the finer points of investigating and prosecuting Medicare cases. Increasingly, the crackdown has the look of a major narcotics operation, complete with electronic surveillance and frequent use of informants and cooperating witnesses. Defendants' assets are now routinely seized before trial. Sentences are being measured in decades; even some older beneficiaries are being prosecuted. Agents are backed by forensic accountaints, health care professionals and data acquisition analysts who have a pipeline to Medicare contractors' billing information."
A side bar to the main feature focuses on Peggy Sposato, describing her as a "fraudster's worst enemy," through use of her data analysis skills to create systematic review of billing records. Her methods successfully trace unlawful Medicare payments. Her career as a fraud buster "began in the mid-1990s after a career as a geriatric nurse."
Mather Lifeways, which describes itself as a "unique, non-denominational not-for-profit oganization" that is "dedicated to developing and implementing 'Ways to Age Well' by creating programs, places and residents for today's young-at-heart older adults," is offering a free webinar on marketing.
The Cafe Plus program is on Thursday, December 11 at 2 p.m. Central time, with three speakers, including the vice-president of Mather Lifeways, the director of an Ohio Senior Center, and the CEO of LifeCare Alliance. The webinar offers education on community outreach to older adults, with a special focus on attracting "younger" older adults who may be avoiding traditional senior centers.
More details and registration information here.
Thursday, November 13, 2014
Does "Unlimited" Gifting Power in POA Protect the Agent from Criminal Liability for Self-Gifting? PA Appellate Court Says "No"
Following a nonjury trial in 2012, David Patton was convicted of 95 counts of statutory theft by unlawful taking, arising out of his use of a power of attorney (POA). The POA named him as agent for his 86 year-old aunt. At issue was more than $200,000. Patton appealed the conviction, alleging the POA that expressly granted him authority to make "limited or unlimited gifts," made it impossible for him to be held liable for theft by cashing checks and making withdrawals from his aunt's accounts for his personal use in 2008, 2009 and 2010. In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding:
"Simply stated, we reject Appellant's bold claim that the 'unlimited gift' provision in the power of attorney provided Appellant with a license to steal [his aunt's] assets and use all of her money for Appellant's own benefit. To the contrary, the gifting power was clearly subject to the condition [stated in a statutorily required affidavit signed by Appellant] that Appellant use the power 'for [his aunt's] benefit' - and Appellant clearly violated this condition when he took all of [his aunt's] money and used it as if it was his own. Therefore, since Appellant's actions were not authorized by the power of attorney, Appellant's sufficiency of the evidence claim necessarily fails."
In reaching this decision, the appellate court adopted the trial court's "meticulous" rulings as its own. In the trial court's final order, the judge rejected the defendant's testimony that he had no awareness or notice that using the POA to make the transfers in question was a crime. The trial judge wrote: "He did not need to be notified in writing to know that he could be charged with theft for taking for his own personal use over $200,000 of [his aunt's] savings, using some of it to go gambling in Erie and depriving her of sufficient funds to pay for her nursing home care in her old age."
An additional interesting, and perhaps confusing aspect of the case, is testimony by the attorney who drafted the POA.
When called by the defense to testify as "an expert" on powers of attorney, as well as a fact witness, the attorney testified he "always" included both "limited and unlimited" gifting authority in his POAs. He testified he explained to the aunt that the broadly-worded POA enabled the agent to "do anything that she could do." On direct examination, he testified the gifting language was "completely unconditional."
As we first generation of elder law attorneys reach that point where we decide to retire--or have the decision removed from us, regardless of the reason--the question of closing or selling the law office becomes an important one. Succession planning is more than selling a business-it's entrusting your clients to someone who will care for and represent them as you did. It's not an easy decision to make and not one that happens overnight. How does an attorney reach the decision to close the doors? The ABA Senior Lawyers Division has delved into this topic, with a webinar on what to do when an attorney becomes incapacitated or dies.
The webinar, So It's Time: Responsible Planning for Closing the Law Office, was offered in October and post-webinar materials will be available for purchase from the ABA. Plan and be prepared! A good motto for our clients and ourselves.
With the most recent news about actor Robin Williams as possibly having Lewy Body Dementia, readers might find free webinar materials from Morningside Ministries useful, at their website mm.learn.org. Look for the "In the News" link -- the materials strike me as objective and thoughtful.
Wednesday, November 12, 2014
AARP's Research released a new report on saving for retirement: Planning for Health Care Costs in Retirement: A 2014 Survey of 50+ Workers. According to the introduction, the reason AARP did this research was to understand how health care costs factor into retirement planning. This is not only an interesting point, it's an important one and worthy of research.
The key findings for this report show that as far as this issue, the news isn't good. Almost 40% aren't saving for health care costs and a bit over 40% relate they have no plans to do so. Slightly over a quarter of respondents do plan to begin to save...within the next few years.
Why aren't these folks saving? According to the findings, right now it's unaffordable, either because they're currently caring for another or they have other expenses. Although over 60% are saving for health care costs, almost half worried they won't be able to afford health care.
The study also shows a disconnect-between the belief of the need for saving and when the belief translates into action. I thought this finding quite interesting--this group plans to pay their own way when it comes to health care costs, with almost 90% replying that they will not rely on family for help with the costs of health care.
The survey also inquired into retirement readiness. The key findings show results that aren't particularly surprising, with about 75% respondents reporting they are "somewhat confident" while only slightly over 30% being "very confident". Concomitantly, 75% have saved to some extent while 1/3 saved "to a large extent." The full report is available here as a pdf.