Monday, December 9, 2013
National Council on Aging Urges Public Support for This Week's Vote on "Qualified Individual" Medicare Funding
From the National Council of Aging (NCOA) a call for action, urging people to write their federal legislators:
This week, House and Senate Committees are scheduled to vote on a bill to permanently fix the longstanding problems with Medicare physician payments. The bad news is that the Medicare Qualified Individual (QI) Program may not get the fix it needs—leaving nearly half a million low-income people with Medicare facing new, unaffordable costs or reduced access to their doctors.
The QI program pays Medicare Part B premiums for beneficiaries with incomes of about $14,000-$15,500, most of whom already must spend over a quarter of their meager income on health care.
If the bills fail to make the QI program permanent, low-income seniors could be forced to drop the Part B benefit and lose access to their doctors, or pay over $1,200 in new, additional premiums.
This means that a senior with just a $14,000 income would only have $9,000 left for all their other living expenses.
The NCOA offers an easy form to use in emailing your Congressional representatives to urge them to vote to make the QI program permanent to protect seniors' economic security and access to physicians.
As readers of this blog will be aware from previous posts, Pennsylvania courts are willing to enforce the Commonwealth's filial support law. The law, at 23 Pa. C.S.A. Section 4603, makes spouses, parents or adult children potentially liable to "care for and maintain or financially assist" each other where the care-needing family member is "indigent." Pennsylvania's law has been interpreted as giving nursing homes or other third-party caregivers standing to sue.
The suits can cross state lines, usually because the target defendant is an out-of-state son or daughter of a nursing home resident in Pennsylvania, thus creating potentially interesting questions of personal jurisdiction. But the latest suit I've seen is an interesting twist on that fact pattern.
In Eades v. Kennedy, P.C. Law Offices, filed in United States District Court for the Western District of New York, a New York husband and daughter are the plaintiffs, suing a Pennsylvania law firm that attempted to collect a nursing home debt "by means of at least one item of correspondence and at least one telephone call." The plaintiffs in the New York suit are also apparently defendants in a Pennsylvania lawsuit filed by the nursing home. At issue is a bill for $8,000. The nursing home in question, located in Corry, Pennsylvania, is just a few miles south of the New York state line.
In the New York suit, Eades asserts that the collection attempts violated the Fair Debt Collection Practices Act (FDCPA) and further that the law firm's allegations of their liability under Pennsylvania's filial support law is "preempted" by federal Medicare/Medicaid law, under a provision of the Nursing Home Reform Act (NHRA) that bars a nursing home from requiring "a third party guarantee of payment to the facility as a condition of admission."
The New York federal district court dismisses the suit, concluding that there is no "jurisdiction," apparently both on subject matter jurisdiction and personal jurisdiction grounds. But then the ruling gets more interesting. The court proceeds to address the substantive claims by the family members, and seems to conclude that a cause of action under the FDCPA is not triggered by a "support" claim, including a filial support claim. Further, the court suggests there is no preemption under federal law for the following reasons:
"The NHRA holds that nursing homes may not require an individual's relatives to assume personal liability for the individual's care as a condition of admission or continued residence in the facility. The Pennsylvania indigent statute cannot be said to cover the same territory: it merely holds that where a resident is or becomes indigent, a nursing home may seek payment or reimbursement for the resident's care from their spouse, children or parents. It does not bypass the NHRA by permitting or excusing the assumption of personal liability by a relative for a nursing home resident's care as a consideration of admission or continued residence -- the sole evil that the NHRA ... appears to have been intended to prevent."
On December 3, 2013, the New York court dismissed the father/daughter's amended complaint for failure to "state a claim." The case is Eades v. Kennedy, P.C. Law Offices, No. 12-CV-66801, 2013 WL 6241272 (W.D. N.Y. 2013).
Sunday, December 8, 2013
Some of you may remember that when you wanted to place a phone call, you lifted the receiver and the operator asked you that question. How many of you still have a landline? I have both a cell and a land line, and may be part of a dwindling group with a landline. How is this relevant to elder law? According to a December 3, 2013 story by Tod Newcombe in Governing about the change from wired to wireless phone technology, it has an impact:
the elderly are also likely to still use landlines and suffer from any drop in service quality... AARP has ... cited a study that showed 94 percent of Pennsylvania residents who are 50 or older are satisfied with their landline service and 54 percent are concerned about affording a landline in the next three years. The same survey showed that 84 percent of rural Pennsylvanians over the age of 50 oppose the deregulation bill.
A significant number of states already have changed their oversight of telecommunications, resulting in less regulation over the newer phone service technologies than historically that over landlines.
AARP has a series of articles regarding the continued availability of landlines, including one from December 3, 2013 about a bill in Michigan that would allow the elimination of landline service in 2017. The David Wallis November 4, 2013 article on Why You Shouldn't Drop Your Landline Just Yet, covers the advantages of a landline in emergencies and in times of weather-related events. The article also references the quality control (one of the concerns offered by opponents of deregulation) that comes with landlines, but not other technologies. As well, some of the medical monitoring devices are created to work with landlines and there is a question whether they work with the alternatives.
Living in a hurricane-prone state, I'm keeping my landline...and my cell phone. What about you?
Recently I was invited to give the keynote address for an annual meeting of MaCCRA, the Maryland Continuing Care Residents Association, held at Vantage House in Columbia, Maryland. As always happens, I learned a great deal from the opportunity to meet with individuals who care deeply about their communities and want to see them continue to succeed. Maryland is home to some 37 Continuing Care Retirement Communities (CCRCs), with close to 20,000 residents.
MaCCRA has a long and especially interesting history of advocating for appropriate protections for current and future residents of Continuing Care Retirement Communities. Most recently, between 2008 and 2012, MaCCRA supported a series of legislative efforts, including some that were ignored or soundly defeated, but culminating in passage of Senate Bill 485 and House Bill 556 in 2012 that amended of Maryland's CCRC oversight laws (Md. Code. Ann. Hum. Serv. Sections 104-1 et seq.). For example, the amendments require:
- greater disclosure of how entrance fees will be used or held, including a requirement of express disclosure about whether fees will or can be used for purposes unrelated to the community;
- greater disclosure of ownership interests in the community;
- disclosure of annual budgets (not just financial statements);
- increase of operating reserves from 15% of net operating expenses to 25%, with a ten-year phase-in; and
- certain restrictions on encumbrances of operating reserves
Such successes have required perseverance, with MaCCRA playing an important role in educating residents across the state as well as legislators. Indeed, MaCCRA understands that grass root movements alone may not be enough, and the organization has worked for twenty years with an experienced lobbyist, thus helping to assure institutional memory while working in small and large ways to urge greater accountability by providers.
One of the questions I frequently am asked during interactions with CCRC resident groups around the country is whether the most appropriate administrative unit of state government to provide oversight is the department of insurance. My response is that the name on the door is not as important as the state's commitment to hiring knowledgeable individuals with finance-specific training and who are not captives to the industry, regulators who are willing to take a balanced approach to oversight. The current operation of the unit of Maryland's Department of Aging charged with oversight of CCRCs strikes me as providing a good example of that commitment.
MaCCRA is a chapter of the National Continuing Care Residents Association (NaCCRA); during my visit to Maryland I learned that a MaCCRA member was an early leader in forming NaCCRA.
USA Today ran a story from Matt Schmitz at Cars.com regarding an announcement from the National Highway Traffic Safety Administration. The NHTSA is working on a five year strategic plan for improving safety for drivers and passengers who are elderly. According to the article, the NHTSA explained that in 2012 "5,560 people older than 65 died and 214,000 were injured in car crashes, a 3% spike in fatalities and a 16% spike in injuries compared with 2011... in addition to an increased risk of death or serious injury in even low-severity crashes."
The plan will revolve around 3 key areas: vehicle safety, data collection and driver safety. For more information about older drivers, view the materials on the NHTSA website here. Also take a look at their November/December 2013 Safety in Numbers newsletter which focuses on elder drivers.
Thanks to Slade Dukes for sending me the link to the USA Today article.
Friday, December 6, 2013
In case you missed it, a bankruptcy judge in Detroit has held that pensions could be considered for cuts as part of the city's bankruptcy case. According to an article in Governing by Liz Farmer on December 3, "[t]he decision on pensions is a precedent-setting one as Rhodes is the first bankruptcy judge to rule on retirees’ status as creditors." The article quotes the judge: “[n]othing distinguishes pension debts from other municipal debts, notwithstanding the state constitution ... it has long been understood that bankruptcy law entails the impairment of contracts … [and] pension rights are contract rights under the Michigan constitution.” The article notes that there is no guarantee that the court will ok cuts to the pensions, referencing a quote from the judge: "[t]his court will not lightly or casually exercise power … to impair pensions..."
According to a New York Times December 3, 2013 story on the judge's ruling,
the judge made it clear that federal bankruptcy law trumps the state law when it comes to protections for public employees’ pensions, making the pensions of 23,000 retirees fair game for the city to include in its plan of adjustment. But while the judge said pensions could not be treated differently from other unsecured debt, he said the court would be careful before approving any cuts in monthly payments to retirees.
The New York Times story provides some quotes those who would be affected by the ruling as well as those representing unions. The Times also ran a companion story about how the judge's ruling might impact the bankruptcy proceedings in Stockton California. The story notes that the Stockton bankruptcy is further in the process than Detroit's and under the plan filed with the court "which is subject to court approval, would leave city workers’ pensions unchanged: They would continue to accrue benefits at the same rate as they did before the bankruptcy."
Appeals are expected. This is an issue that bears watching and something we should include in our class discussions.
The Commonwealth Fund has released a new issue brief by Dr. Sherry Glied & Stephanie Ma, titled How States Stand to Gain or Lose Federal Funds by Opting In or Out of the Medicaid Expansion. The abstract for this brief explains:
While the states’ costs of participating in the Medicaid expansion have been at the forefront of this discussion, the expansion has much larger implications for the flow of federal funds going to the states. This issue brief examines how participating in the Medicaid expansion will affect the movement of federal funds to each state. States that choose to participate in the expansion will experience a more positive net flow of federal funds than will states that choose not to participate. In addition to providing valuable health insurance benefits to low-income state residents, and steady sources of financing to state health care providers, the Medicaid expansion will be an important source of new federal funds for states.
The authors compare (1) anticipated federal dollars in 2022 to states with Medicaid expansion to the highway and defense contract dollars going into the state; (2) Medicaid dollars to taxes the feds have collected to fund it and (3) the share of the cost for state expansion in 2022 to state spending to bring in private investments. The findings show that :
Medicaid expansion will be a relatively large source of federal revenue to states [with] the value of new federal funds flowing annually to [participating] states ... in 2022 will be, on average, about 2.35 times as great as expected federal highway funds ... and over one-quarter as large as expected defense procurement contracts to states.
The authors conclude (p. 4) that there are "direct benefits" as well as a positive impact on the economy and Medicaid expansion may offer significant advantages to a participating state. There's a nifty infographic available also that shows the costs of rejecting Medicaid expansion in three states: Florida, California and Ohio.
You can register to receive email alerts from the Commonwealth Fund here.
Governing has published two interesting articles that look at the impact of Medicaid expansion under the ACA. The first, by Chris Kardish, published November 26, 2013, covers the impact of Medicaid expansion on prison health care costs. How Medicaid Expansion Can Lower Prison Costs, Recidivism starts by noting one of the benefits of the ACA's Medicaid expansion: " the chance to save millions on health care in prison systems and lower the number of ex-convicts who commit new crimes."
Those states expanding Medicaid can ask the federal government to cover those hospitalizations outside the prison system, and although that has been true for some time, the prisoner-patients would not have qualified for Medicaid prior to the expansion. Not only is there an impact on the current prison population but "[b]acked by studies that show access to mental health, substance abuse and other services help keep former prisoners from committing crimes again, some states are taking extra steps to ensure ex-prisoners not only sign up for Medicaid but keep their appointments." Not only will states save money, but the recidivism rates will drop, according to studies referenced in the article. The article has some interesting statistics and discusses the experiences of several states.
The second was also by Chris Kardish and published December 2, 2013. New Medicaid Enrollees Come with Mental Health Needs, Uncertain Costs discusses a recent study done by the Harvard School of Public Health and the Urban Institute, using interviews from Medicaid directors in states that had already expanded Medicaid coverage. The report, Lessons From Early Medicaid Expansions Under Health Reform: Interviews with Medicaid Officials is published in Medicare and Medicaid Research Review, and is authored by Benjamin D. Sommers, Emily Arntson, Genevieve M. Kenney and Arnold M. Epstein.
According to the story in Governing, the hardest part was predicting with any certainty the numbers who would sign up, the costs and the services needed, in particular, mental health care. Officials were surprised by the cases of substance abuse, which did not qualify the beneficiaries for coverage prior to the expansion. The article notes the conclusion that states should find a way to expand coverage for mental health as well as include it in primary care. A pdf of the report may be downloaded here.
A recent issue of the ABA's Dispute Resolution Magazine (Fall 2013) included an article on "Elder Mediation: Coming of Age," authored by two mediation trainers, that tracks the growth of mediation for elder disputes in a variety of settings. The authors conclude: "Skilled, dedicated professionals can help parties find paths to agreements on some of the toughest and most emotional issues that families face."
Included within the article was a listing of elder dispute resolution resources:
- Alaska Court Program
- ABA Commission on Law and Aging
- Bet Tzedek
- Center for Civic Mediation, Elder Care Mediation Program
- Center for Dispute Resolution, Missouri State University
- Center for Social Gerontology
- Circuit Court of Cook County Elder Law & Miscellaneous Remedies Division
- Elder Decisions
- Elder Mediation Program of Mosaica Center for Consensual Conflict Rsolution
- Good Shepherd Elder Dispute Services Program
- LGBT Elder Care Intitiative
- Multi-Door Division of the Superior Court of the District of Columbia
- Northern Virginia Mediation Service
- Wise and Healthy Aging
Hat tip to my colleague at Penn State Dickinson, Professor Nancy Welsh, for sharing a copy of the issue. Nancy is co-chair for the editorial board for Dispute Resolution Magazine.
Thursday, December 5, 2013
The Center for Medicare Advocacy has sent out a save the date for its first annual National Voices of Medicare Summit & Senator Jay Rockefeller Lecture. The summit will take place on March 21, 2014 from 8:30 a.m. to 5:00 p.m. with a reception to follow. The Summit will be held at the Kaiser Family Foundation Barbara Jordan Conference Center, 1330 G Street NW, in D.C.
Details and registration information are forthcoming.
Kaiser Health News has published the December 3, 2013 article by Anna Gorman (the article was done with the Seattle Times) titled When Palliative Care is the Best Care. The article focuses on several palliative care doctors and their patients, who are seriously ill. We may think of palliative care in conjunction with patients who are terminally ill but this is a broader view of the use of palliative care, without regard to a prognosis on life expectancy. The article notes that:
[p]alliative care teams help patients with issues not always addressed by medical doctors. They help manage symptoms such as nausea, difficulty sleeping and fatigue, and they coordinate with the doctors providing treatment. They also provide patients and families with emotional and spiritual support, helping them understand the illness and guiding them through tough treatment choices.
The article cites to an increase in the number of hospitals now offering palliative care programs. As the article notes, there are patients who are not yet ready for hospice but who can benefit from palliative care. As well, palliative care saves health care dollars and bolsters patient satisfaction. The article also covers the need to train doctors on how to have conversations with their patients who are at the end of life or just critically ill.
Daniel Callahan, co-founder and President Emeritus of the Hastings Center wrote an op-ed, On Dying After Your Time, published in the New York Times on December 1, 2013. In the op-ed, Mr. Callahan reviews the efforts to extend life as part of what he references as "anti-aging research". Then Mr. Callahan poses some thoughts on what I call "the can and should discussion:"
[e]ven if anti-aging research could give us radically longer lives someday, though, should we even be seeking them? Regardless of what science makes possible, or what individual people want, aging is a public issue with social consequences, and these must be thought through.
Mr. Callahan uses himself to discuss medical care, its costs and makes mention of the impact on Medicare. He then asks "Can we possibly afford to live even longer — much less radically longer? "
This rise in chronic illness should also give us pause about the idea, common to proponents of radical life extension, that we can slow aging in a way that leaves us in perfectly good health. As Dr. Olshansky has tartly observed, “The evolutionary theory of senescence can be stated as follows: while bodies are not designed to fail, neither are they designed for extended operation.” Nature itself seems to be resisting our efforts....
Mr. Callahan goes on to examine the impact on the work force and any social benefits from extending life. He notes "I am flattered, at my age, by the commonplace that the years bring us wisdom — but I have not noticed much of it in myself or my peers. If we weren’t especially wise earlier in life, we are not likely to be that way later." He concludes that just because we can, doesn't mean we should: "We are not, however, obliged to help the old become indefinitely older. Indeed, our duty may be just the reverse: to let death have its day."
The points he raises in this op-ed are something we should be discussing with our students. The Hastings Center story about the op-ed is available here.
The Journal of Alzheimer's Disease published on November 7, 2013 a story about the research results of a team who developed a way to predict the time line for an Alzheimer's patient. New Method Predicts Time from Alzheimer’s Onset to Nursing Home, Death details their work. According to the story, "[t]he method, which uses data gathered from a single patient visit, is based on a complex model of Alzheimer’s disease progression that the researchers developed by consecutively following two sets of Alzheimer’s patients for 10 years each." The article discusses how the team developed their research findings. The article, A New Algorithm for Predicting Time to Disease Endpoints in Alzheimer's Disease Patients can be ordered here.
Calling it a "matter of first impression," an intermediate appellate court in Pennsylvania has ruled that a woman's renunciation of her interest in a dissolved marital support trust was a transfer "for less than fair consideration," thus triggering ineligibility when she entered a nursing home and applied for Medicaid.
As reported in Schell v. Pa. Department of Public Welfare, decided December 4, 2013 by the Pennsylvania Commonwealth Court, a testamentary trust was dissolved in 2009, leaving approximately $300,000 to be distributed to the settlor's widow. The widow formally renounced her interest in the distribution, permitting the sum to be divided equally between the couple's two children, one of whom was disabled. Two years later, in 2011, the widow entered a nursing home and applied for Medical Assistance.
While DPW accepted the widow's "hardship" argument regarding the half distributed to the disabled daughter, the Court upheld DPW's challenge to the distribution of the other half to the son. The Court rejected the widow's argument that the penalty period could not apply to a trust created more than five years before her nursing home admission, on the ground that the key event was termination of the trust within the Medicaid lookback window:
"Once the trust was dissolved, Petitioner became entitled to any remaining income and principal therein. This income and principal was available for Petitioner to use for her support, but she made an affirmative decision not to receive the same, without any good cause explanation for so doing. . . . Upon Petitioner’s renunciation, the trustee distributed half of the remaining income and principal from the trust, $151,231.76, to her son. Petitioner received nothing in return, and, thus, the [Bureau of Hearings and Appeals] properly concluded that this transfer was for less than fair market value, thereby resulting in the imposition of a penalty period of 582 days."
Wednesday, December 4, 2013
Writer Kim Severson at the New York Times reports on the death of 72-year old Ronald Westbrook, shot by Georgia homeowner Joe Hendrix after trying to gain entrance to Hendrix's home:
"In the confusion that comes from Alzheimer’s, Mr. Westbrook had taken to collecting the mail from neighbors’ mailboxes. He was doing so that night on Marbletop Road, which is a mile or so from his home. He told the deputy he lived in a nearby house, which at one time, years ago, he had. 'Better get home,' the deputy said. 'It’s cold.'
The deputy drove on, and Mr. Westbrook, in a straw hat and a jacket too light for the weather, continued walking with his dogs. Just before 4 a.m., he was nearly three miles from home in the subdivision of modest new houses where Mr. Hendrix lives, near Chattanooga."
While the NYT story focuses mostly on the fear, confusion, and potential impact of Stand Your Ground laws, as factors potentially contributing to the older man's death, I am reminded of another story I blogged about earlier, where a wandering man with early onset dementia ended up in jail, only to suffer a brutal beating at the hands of a cellmate when authorities failed to recognize the implications of the man's confusion. Ironically, that case too was in Georgia.
In both instances, it seems that public authorities arguably had a chance to shepherd their wandering citizens to a safer setting.
We have offered several posts regarding end of life issues, and now we wanted to let you know about a recent poll released by Pew Research, on Religion, Public Life & Policy. The poll, released on November 21, 2013, is titled Views on End-of-Life Medical Treatments.
The report contains a detailed overview and then is divided into 5 chapters, covering topics including physician-assisted suicide, morality of suicide, general views as well as individual desires on end of life treatment, proxy decisions and aging and the quality of life. The report notes a very slight increase in support for physician-assisted suicide but a bit more of an increase in support of a person's right to end her life in certain cases. (p. 7). The report incorporates a discussion of religions' influences in the section on morality.
One of the many interesting statistics contained in this report is the percentages of those who have given some thought to their end of life wishes. Despite the increasing numbers of those 65 and older (Boomers):
Nearly four-in-ten U.S. adults (37%) say they have given a great deal of thought to their wishes for medical treatment at the end of their lives, and an additional 35% have given some thought to these issues. But fully a quarter of adults (27%) say they have not given very much thought or have given no thought at all to how they would like doctors and other medical professionals to handle their medical treatment at the end of their lives.
Even among Americans ages 75 and older, one-in-four say they have not given very much or any thought to their end-of-life wishes. Further, one-in-five Americans ages 75 and older (22%) say they have neither written down nor talked with someone about their wishes for medical treatment at the end of their lives. And three-in-ten of those who describe their health as fair or poor have neither written down nor talked about their wishes with anyone.... (p. 9)
Anyone who discusses end of life decision-making or advance directives needs to read this report. It has some great data for our classes.
A pdf of the report may be accessed here.
In my travels, I often talk with families struggling to care for aging loved ones in the parents' home. One frequent topic is how challenging it can be, especially in certain parts of the country, to find reliable home care workers, especially if no adult child lives close enough to supervise.
Recently, one family described to me an additional complication, what to do when the best home care workers insist on being paid in cash, under the table. Here's the setting:
"When my father began to need more care than my mother could provide on her own, and more than I could provide by driving up for long weekends, we tried local agencies. We had almost constant problems with untrained workers and frequent turnover. I decided to try to hire someone directly, realizing that part of the problem was the low rates paid to the employees by the agencies, usually less than half of what we were paying the agency. In some instances the individual was making just over minimum wage, and often the agency refused to pay overtime, because our state law exempts home care workers from certain threshold Labor rules. When I started looking, I discovered that the agencies were advertising on Craig's List too, and I realized the agencies were finding it hard to get reliable workers. We were competing for the same workers.
Finally, I talked to a local Veterans office, who suggested that sometimes informal teams form, almost as spin-offs from an agency, and will work directly for the family. The team members are used to working together, and would cooperate with each other to meet our growing needs for around-the-clock care. They charge less than the agencies, but their take-home pay is higher.
I finally found this kind of local team, two mature women who would work on a shift system, coordinating with each other to provide reliable care. But there was one big problem. They refuse to sign a contract, work for an agency, or have any record of their care, and they won't work for our family if we insisted on withholding for taxes or Social Security. After weeks of problems with agencies, we were desperate, and they knew it. Even though Dad qualifies for VA aide & attendance, we cannot get reimbursed without proper records. The irony is these two woman are providing the best care we've had to date for my parents, and they are reliable. But they are insisting on cash. Frankly, they have us over a barrel, at least for the current emergency."
As depicted on the U.S. Department of Labor website, state laws vary on whether in-home care workers are covered by minimum wage and overtimes rules. The catch-22 is that in many instances, paying higher rates would make home-care unaffordable for families. However, low pay and no benefits are often analyzed, if not addressed, as issues of fairness for the worker, rather than the employer.
Unreported income is, of course, a long-standing issue for taxing authorities, usually discussed in the context of hiring a nanny, house-cleaner, or gardener. Is under-the-table pay for home care workers a trend in your area of the country? Feel free to send us links to emerging legal research on this topic.
Tuesday, December 3, 2013
Lewy body dementia (LBD) is a complex, challenging, and surprisingly common brain disease. Although lesser known than its “cousins” Alzheimer’s disease and Parkinson’s disease, LBD is not a rare disorder. More than 1 million Americans are affected by its disabling changes in the ability to think and move. This 40-page booklet helps people with LBD, their families, and professionals learn more about the disease and resources for coping.
The manual discusses the LBD basics, types, risk factors, causes, diagnosis, treatment and caregiving. A pdf of the publication may be downloaded here. This report is part of the NIA's Alzheimer's Disease Education and Referral Center.