Friday, March 7, 2014
According to the March 3, 2014 story by Anna Gorman in the Kaiser Health News (in collaboration with the LA Daily News), L.A. County Officials Told Inspectors To Cut Short Nursing Home Probes, county inspectors were instructed to close certain cases without a complete investigation. The project was dubbed "Complaint Workload Clean Up Project" and involved the following:
According to the confidential documents, L.A. County public health supervisors ... told inspectors to administratively close complaints submitted anonymously as “No Action Necessary.”
They instructed inspectors to close other cases by examining previous reports about the facility instead of thoroughly investigating the complaint at hand. If two other inspections done around the same time did not reveal problems similar to the new allegation, the complaint was to be determined “unsubstantiated.”
The county also told inspectors to administratively close cases reported directly by a nursing home if the facility had been in compliance with an earlier routine inspection.
The internal documents said, however, that inspectors were to fully investigate complaints that were high-profile, were part of a lawsuit or involved alleged abuse or neglect.
According to the county's chief of the health facilities inspection division quoted in the story, this occurred because of the state's impetus to close cases. Although all investigations began, some were not finished or documented, and he noted an insufficient number of staff to deal with the cases.
The article looks at the number of open investigations statewide and references legislative hearings about the backlog. The state's department of public health has had issues before regarding the processing of complaints against nursing homes: "[a] 2005 lawsuit, a 2007 state audit, a 2011 report by the federal Office of the Inspector General and 2012 sanctions by [CMS] all have taken issue with the time it takes to resolve complaints." The article notes that the state's department doesn't condone the practice and has ordered the county to stop. There is a separate inquiry undertaken by CMS.
A follow up story on March 5, 2014 notes that the county board of supervisors ordered an audit regarding the public health department's oversight of nursing homes. The director of the Department of Public Health answered questions during the supervisors' meeting.
ASA's 2014 Aging in American Conference, a five day conference held this year in San Diego, kicks off on March 11, 2014. AiA14 celebrates ASA's 60th anniversary. I will be presenting on March 12 at 11:30 pst with two of my colleagues on how to be an effective witness. If you are attending the conference, stop by our session and say "elder law rocks!"
In MetLife Home Loans v. Vareen, decided in Kings County, New York on February 11, the mortgage company attempted to foreclose on a reverse mortgage, apparently because of unpaid water bills for the property. The case was "conferenced extensively with the defendant homeowner's family in the court's Foreclosure Settlement Conference Part," with no resolution of the dispute, but the homeowner did not file a formal answer in the lawsuit. Eventually the mortgage company sought an "ex parte" default ruling.
In denying the requested relief, the judge noted that the homeowner had a contractual obligation to stay current on all items which could become charges against the property. However, the mortgage company also had the contractual option to "make the payment for the mortgagor and charge the mortgagor's account. If a pattern of missed payments occurs, the [mortgage company] may establish procedures to pay the property charges from the mortgagor's funds as if the mortgagor elected to have the mortgagee pay the property charges under this section." It appears the homeowner was receiving monthly "reverse mortgage payments," rather than a single lump sum.
This history of the case is a reminder that reverse mortgages may not be the best solution for some older homeowners, especially if the cost to maintain the house is substantial, or if the elderly homeowner (or a volunteer in the family) is unable to handle payment of bills as they come due.
Here the court stepped in to prevent loss of the home, citing the lender's contract options. The court quoted the rosy language of a HUD-approved consumer guide, appearing to assure borrowers they can "continue to live at home as long as you want," and concluded:
"As such, plaintiff cannot foreclose on defendant's reverse mortgage because of her default in paying the NYC water bill. Furthermore, serving a senior citizen holding a reverse mortgage with a complaint that fails to specify what the default is can only be described as unconscionable."
Other court challenges to attempts to foreclose on reverse mortgages where there is a "surviving" spouse, but that individual is not an owner of record, are detailed here, with the potential class of plaintiffs represented by an AARP Foundation Litigation team. Thanks to ElderLawGuy Jeff Marshall for tweeting on AARP's efforts.
Thursday, March 6, 2014
New GAO Report on "Retirement Security: Trends in Marriage, Work, and Pensions May Increase Vulnerability for Some Retirees"
The decline in marriage, rise in women's labor force participation, and transition away from defined benefit (DB) plans to defined contribution (DC) plans have resulted in changes in the types of retirement benefits households receive and increased vulnerabilities for some. Since the 1960s, the percentage of unmarried and single-parent families has risen dramatically, especially among low-income, less-educated individuals, and some minorities. At the same time, the percentage of married women entering the labor force has increased. The decline in marriage and rise in women's labor force participation have affected the types of Social Security benefits households receive, with fewer women receiving spousal benefits today than in the past. In addition, the shift away from DB to DC plans has increased financial vulnerabilities for some due to the fact that DC plans typically offer fewer spousal protections. DC plans also place greater responsibility on households to make decisions and manage their pension and financial assets so they have income throughout retirement. As shown in the figure below, despite Social Security's role in reducing poverty among seniors, poverty remains high among certain groups of seniors, such as minorities and unmarried women. These vulnerable populations are more likely to be adversely affected by these trends and may need assistance in old age.
While updating my treatise (a section on older drivers) I came across this article from AAA on how older drivers can maximize their safety while driving through their choice of a vehicle. Here's an excerpt::
Smart Features for Older Drivers
A vehicle is one of the largest purchases a person makes, and it is critical to find the right one for you. To help older drivers know what to look for in a vehicle, AAA worked with the University of Florida Institute for Mobility, Activity, and Participation to help identify
smart features for older drivers (SFOD) to optimize their comfort and safety. Use the tool at the bottom of the page to explore these smart features.
Social Security has an FAQ specifically for same sex spouses that covers the most common questions asked subsequent to the Supreme Court ruling. The 9 questions cover eligibility, benefits, location of the marriage, and the impact on SSI. The FAQ is available here.
We know that higher income beneficiaries enrolled in original Medicare pay higher premiums for Parts B and D. As well, workers with higher earnings are paying more in Medicare "taxes". Need a quick reference for the figures? Find it here---prepared by Lina Walker and Megan Multack, the AARP Public Policy Institute has released a February, 2014 two page fact sheet Higher-Income Individuals Pay More for Medicare.
In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate. Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law."
The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."
The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27, allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy. The allegations go back to 2007, with multiple continuances of the scheduled trial dates.
The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee. The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough." The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."
Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour."
The appellate opinions in the cases are fairly dry. In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01.
The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.
Wednesday, March 5, 2014
Upcoming Webinar on Medicare Observation Status and Improvement Standard in Skilled Nursing Facilities: What Advocates and Consumers Need to Know
When: Thursday, March 13, 2014 • 3:00pm - 4:30pm EST
Speaker: Toby S. Edelman, Senior Policy Attorney, Center for Medicare Advocacy, Inc.
After briefly reviewing requirements for Medicare coverage of a stay in a skilled nursing facility, this webinar will discuss in depth how to overcome two obstacles to coverage – observation status and the myth of medical improvement. Observation status occurs when hospitals label patients as “outpatient” when they are hospitalized, often for multiple days, depriving them of the three-day inpatient status that is necessary for Medicare coverage in a SNF. Regarding the improvement standard, the settlement in the Vermont lawsuit Jimmo v. Sebelius confirms that Medicare pays for “maintenance” nursing and therapy for nursing home residents, dispelling the myth that Medicare pays for care only when a resident will “improve.” Learn how to advocate effectively for Medicare beneficiaries, and where advocates and consumers can get help.
This webinar is open to all!
Cost: $50.00 Registration for Live Webinar (includes mp3 recording) • $15.00 Webinar recording only (mp3, by email).
Apparently a lot of us were having "driveway" moments today, listening to NPR on the way to work and lingering in the car to hear the finish of the story. My Penn State colleague Amy Gaudion popped into my office to tell me of the "amazing" piece she had just heard, and a few minutes later I received an email from a friend who recommended that same radio story.
So, here's the link to the much recommended piece from NPR's Morning Edition, "Living Wills are the Talk of the Town in La Crosse, Wisconsin."
The Administration for Community Living recently published a series of fact sheets related to advance care planning on the Elder Care Locator. The Fact Sheets are designed to help older adults and their families plan for the care they want when they have a serious illness. The Fact Sheets are about care planning generally, care during advanced cancer and dementia, family caregivers, and the services that can help families during serious illness. Each one provides links to additional resources that may assist families as they face serious illness. View the fact sheets and access downloadable pdf copies here.
The American Geriatrics Society and the American Board of Internal Medicine Foundation have joined in a venture called "Choosing Wisely," and recently issued "Five Things Physicians and Patients Should Question."
The items are intended to stimulate more thoughtful decision making, especially in dementia care, and address diet, restraints, and use of screening tests. Two items that hit home include:
- Don't prescribe cholinesterase inhibitors for dementia without periodic assessment for perceived cognitive benefits and adverse gastrointestinal effects.
- Don't prescribe any medication without conducting a drug regimen review.
This "Five Things" list was actually the second set of "Choosing Wisely" recommendations. Here's a link to the important first list, which includes the concern about off-label prescriptions of antipsychotic medications to treat symptoms in dementia, a topic that has also been the subject of major whistleblower cases and settlements involving the pharmaceutical industry.
Drs. Christopher M. Callahan, Paul R. Helft, Siu L. Hui, Greg A. Sachs, James E. Slaven and Alexia M. Torke and Kianna Montz had published a study on surrogate decision-making for elderly hospital patients in the Journal of the American Medical Association (JAMA) Internal Medicine (formerly Archives of Internal Medicine) on January 20, 2014 (subscription required). Scope and Outcomes of Surrogate Decision Making Among Hospitalized Older Adults, according to the abstract, examined cases of "[h]ospitalized older adults [who] often lack decisional capacity, but outside of the intensive care unit and end-of-life care settings, little is known about the frequency of decision making by family members or other surrogates or its implications for hospital care." The summary provided in the abstract concludes:
Surrogate decision making occurs for nearly half of hospitalized older adults and includes both complete decision making by the surrogate and joint decision making by the patient and surrogate. Surrogates commonly face a broad range of decisions in the intensive care unit and the hospital ward setting. Hospital functions should be redesigned to account for the large and growing role of surrogates, supporting them as they make health care decisions.
Thanks to Naomi Cahn for sending us this story.
Tuesday, March 4, 2014
Mark your calendars. The National Consumer Voice for Quality Long-Term Care is holding a webinar on March 13, 2014 from 3-4:30 p.m., est. Toby Edelman, Senior Policy Attorney for the Center for Medicare Advocacy (CMA), is the speaker for this webinar, Medicare Observation Status and Improvement Standard in Skilled Nursing Facilities: What Advocates and Consumers Need to Know. The webinar will cover the following:
After briefly reviewing requirements for Medicare coverage of a stay in a skilled nursing facility, this webinar will discuss in depth how to overcome two obstacles to coverage – observation status and the myth of medical improvement. Observation status refers to the label of “outpatient” that hospitals assign to patients who are hospitalized, often for multiple days, depriving them of the three-day inpatient status that is necessary for Medicare coverage in a SNF. The settlement in the Vermont lawsuit Jimmo confirms that Medicare pays for “maintenance” nursing and therapy for nursing home residents, dispelling the myth that Medicare pays for care only when a resident will “improve.” Learn how to advocate effectively for Medicare beneficiaries, and where advocates and consumers can get help.
The cost for the webinar is $50. Unable to attend? You can obtain a subsequent podcast (mp3) for $15.00. To register or for more information, click here.
Michael Astrue, who served as Commissioner of the Social Security Administration for six years, has written a blog post for the Special Needs Alliance on working with SSA. It's a must read for anyone who has dealings with the agency.
Our good friend and Elder Law superstar Dick Kaplan sent me a note about the 2014 lecture that was held on March 3, 2014. Professor Lawrence O. Gostin from Georgetown Law spoke on Governing for Health as the World Grows Older: Challenges and Opportunities for Healthy Lifespans in Aging Societies." The website offers this description of his presentation:
The challenge of global aging is significant and universal. Almost 700 million people are now over the age of 60, and by 2050, 2 billion people—over 20% of the world’s population—will be 60 or older. Today, almost two in three people over 60 live in developing countries, and by 2050, nearly four in five of those over 60 will live in the developing world. In the coming decades, the shift to an older demographic will be a fundamentally important dynamic for global health and must shape the way the international community works towards the goal of addressing health disparities within and across societies.
Professor Gostin's new book on Global Health Law was released on the same day as the lecture.
The official press release issued on February 20 confirmed big news in the senior care industry about the merger of Brookdale Senior Living, based in Tennessee, and Emeritus Senior Living, originally headquartered in Seattle. Here are some of the details, as reported in the Nashville Business Journal:
"The company's corporate headquarters will remain in Nashville, and members of Emeritus' senior management team are expected to stay on board at the combined company. The merger will expand Brookdale's unit capacity by two-thirds, pushing the company into 10 new states. In total, the combined company will have operating capacity of approximately 112,700 units in 1,161 communities in 46 states. Following the merger, a Brookdale community will be within 10 miles of 6.5 million seniors 80 years or older, according to the release."
Emeritus earlier attracted high-profile press when it became one of the subjects of a Frontline series on "Life and Death in Assisted Living," by Pro-Publica. According to the Nashville Business Journal, as reportedly confirmed after news of the merger, "federal investigators are investigating Emeritus' business dealings, including its Medicaid billing practices."
It would seem this merger will continue to generate news for some time to come, as suggested by this press release from securities lawyers Deans & Lyons.
Monday, March 3, 2014
The National Long-Term Care Ombudsman Resource Center has released fact sheets on preventing, discovering and reporting financial exploitation of residents in ALFs and nursing homes. The fact sheets fall into two categories: for residents and friends and family. There are 2 specifically for ALFs and 2 for nursing homes. "The ... fact sheets provide an overview of residents’ rights and facility responsibilities related to resident finances, tips for protecting themselves and how to report incidents of financial abuse. The fact sheets for family and friends of residents also review residents’ rights and facility responsibilities, highlight warning signs and how to report incidents of financial exploitation."