Monday, September 30, 2013
Yes, it's time to talk about the Boomers (again). The U.S. Senate Committee on Aging held a hearing on September 25th, 2013 on the State of the American Senior: The Changing Retirement Landscape for Baby Boomers. The witnesses included Dr. Olivia Mitchell from Wharton, Paula Calimafde from the Small Business Council of America, Dr. Richard Johnson from the Urban Institute and Joanne Jacobsen who is a boomer. The hearing runs almost 2 hours. Since I haven't listened to it yet, I wanted to relay the comments about the hearing from Carole Fleck's September 25th post to the AARP Blog, titled It's Not Your Parent's Retirement. The post opens with this: "File this one under the Tell-Me-Something-I-Didn’t-Already-Know category: People in the baby boomer generation face an uncertain future in retirement and it’s not clear if they can dodge the prospect of outliving their savings."
The post is full of some great insights from those witnesses, including Dr. Mitchell who is quoted: “'We boomers face a much different future,” she said. “Few of us have retiree medical coverage and traditional defined benefit pensions. Some of us … have not saved enough, nor are we converting our assets into longevity-protected income streams so as to avoid outliving our savings.'”
The experts offer a number of recommendations summarized in the AARP post, such as improving financial literacy, requiring mandatory retirement savings accounts with a percentage of wages, encourage employers to provide defined contribution plans, stop pre-retirement withdrawals from 401(k)s and doing away with the IRA required minimum distributions.
The Committee also heard testimony about why boomers aren't financially prepared to retire and the blog post mentions several: "increasing debt carried into retirement; rising health care and long-term care costs; the gift of longevity (and the extra years that will need to be funded in retirement); the shift from guaranteed pensions to defined contribution plans; and chronic long-term unemployment among those 55 and older who lost their jobs during the downturn."
The post ends with an excerpt of Ms. Jacobsen's testimony
that she “did all the right things” in planning for her retirement for the last 30 years. However, the past decade has been a struggle. She got laid off at age 52, after working at Verizon for nearly 30 years. She’s been in and out of the workforce ever since, trying to make ends meet.
Her advice to her adult sons: “I have told them that it’s now a ‘do-it-yourself’ economy and [to] always have the proverbial plan b and plan c. There is no stability in today’s job market and absolutely no promise of retirement benefits,” she said.
I think the hearing is a must-watch for all of us, both since we teach planning and paying for retirement and long-term care, and for us personally. Boomers still ROCK!
Have you looked at the migration trends for your state? (and no, I'm talking people, not birds or butterflies). Governing did, using the new numbers from the American Community Survey done by the Census Bureau. Mike Maciag posted Analysis: Who's Moving to Your State? in the September 25th blog. The data examined focused on two groups: those moving from other countries and those moving from one state to another. Discussing the migration by age group, the post notes that the sunbelt states (referred to the in the article as "retirement hot spots") continued to be attractive to those older individuals, with "Florida add[ing] 104,000 residents age 65 and older, accounting for about 15 percent of the state’s estimated new residents moving in. That’s the highest share of any state, followed by Arizona, which welcomed nearly 40,000 such residents, or about 14.5 percent of all movers."
You can select a specific state to obtain data on eduation, age, income, nationality and general demographics. And don't forget to call the Welcome Wagon.
Of course, it's good for the economy to have more folks moving into the state--new residents help the housing market, can improve a community's tax base, bring in more business, etc. But what happens when those folks need services---say for example, half of those new residents to Florida in 15 years are frail and in need of Medicaid, home health care, Meals on Wheels, etc. It's important that we consider how migration patterns affect agencies' case loads and demands for services while welcoming folks to the neighborhood.
"Perdue tried to get help from Meals on Wheels Atlanta. In mid-April of 2012, she was twenty-seventh on a waiting list of 120. In November, she was still on the list, which had grown to 198. Her daughter finally found another program.
Such is the world of food rationing for the elderly—the hidden hunger few ever see. Tenille Johnson, one of two case managers at Meals on Wheels Atlanta, said there were others on the list who were even more in need than Perdue. In 2012, the program served 106,000 meals—up from 84,000 three years before—and it will serve about 114,000 this year. “We’ve been able to up our game and reduce the waiting list to between 145 and 160 seniors, but the need has outpaced us,” says executive director Jeffrey Smythe. “The numbers are going up more quickly than we projected. We have waiting lists all over the metro Atlanta area, even in suburban counties.”
The Nation writer first reported on underfunding for programs assisting home-bound elderly in 1998. "Little has changed in the last fifteen years," she reports. Except, as her article demonstrates in detail, the need is greater, on a nation-wide basis.
"The National Association of Area Agencies on Aging says nearly 60 percent of all Older Americans Act programs had waiting lists in 2010, but the ones for home-delivered meals are particularly urgent, since food is so basic to good health."
Remember the Older Americans Act (OAA), first enacted in 1965? Meals on Wheels was once a core component of OAA's programming, and administered to the states through Area Agencies on Aging. Charities, churches and other nonprofits have not been able to cover the gap in funding. As discussed earlier on this Blog, Congress still has not reauthorized the OAA,and as Lieberman's article demonstrates, there are very real consequences to Congressional gridlock and Congress's failure to address even uncontroversial programs while rehashing party-politics on the Affordable Care Act.
Hat tip to Kevin Schock, Penn State Law, for spotting this timely article.
Friday, September 27, 2013
Despite modest gains in the economy in 2012, national poverty rates remain virtually unchanged from last year. However, a new study highlights one group that has unexpectedly fallen deeper into poverty: elderly women. Among women 65 and older, the ‘extreme poverty’ rate rose 18% in 2012. Extreme poverty is defined as an annual income of $5,500 or less for older individuals living by themselves. “The cause has to be something that hits elderly individuals particularly hard,” said Kate Gallagher Robbins, a senior policy analyst at the National Women’s Law Center, who conducted the study. ”We also know that poverty for elderly men and women was statistically unchanged so we are talking about a group of individuals who went from being poor to extremely poor.”
The extreme poverty rate for elderly women ticked up to 3.1% in 2012 from 2.6% in 2011. An additional 135,000 elderly women became categorized as extremely poor, bringing the total number of elderly women in extreme poverty to 733,000. Sixty-two percent of elderly women in this group are white, non-Hispanic, 16% are Hispanic, 17% are black, 4% are Asian and 2% are Native American.
The National Women’s Law Center is currently exploring potential reasons for the sudden increase.
“One factor might be cuts in recent years to Social Security Administration funding which may be making applications for [Supplemental Security Income] more difficult,” Robbins wrote in an email to MSNBC.com. “Without Social Security, almost 15.3 million more elderly individuals would have been poor in 2012, yet many policy makers are debating switching the cost-of-living adjustment to the chained CPI which will reduce the value of benefits for current beneficiaries. Clearly these data show that making such cuts would be unconscionable.”
Another cause for the rise in the extreme poverty rate for this group may have to do with unemployment insurance benefits. Since older workers are more likely to be unemployed for longer periods of time, the likelihood that their unemployment insurance benefits expired, or even cut, between 2011 and 2012 is high.
For example, I just finished teaching a series of cases that ask students to evaluate the voidability of large end-of-life gifts made by older individuals, usually to persons who appear to be caregivers or recent "befrienders." Were the transactions voluntary even if unwise, or were they the product of an unstable mind or undue influence? Close calls on most of the cases.
The cases that interest me most were the ones where an attorney represented the older person during execution of the documents. In one case, the court commented that the attorney who completed the transaction met with the new client for an hour on a Sunday afternoon and performed a series of "tests" that satisfied the attorney about the client's capacity to complete transfers of the bulk of his real estate. However, a geriatric psychiatrist who later evaluated the same individual, found the individual to have advanced dementia of an Alzheimer's Disease type and concluded the individual would not be able to understand the significance of the deed transfers signed earlier, even though he appeared to be "oriented as to time, place, and person."
Which professional's testimony carried the day? The court credited the attorney's testimony that his client was "lucid" while completing the documents in question, and pointed to the fact the doctor "conceded" that the individual had "moments of lucidity."
Exactly what "tests" does a lawyer, any lawyer, use to evaluate cognitive function? Perhaps every seasoned lawyer has a series of tried and true questions or techniques. But I suspect that many lawyers rely more on instinct than tests, and certainly most transactions by older adults are not challenged.
Should lawyers go further to assess capacity? To help frame the discussion on whether and when to go more deeply into questions of capacity, guidelines are available. Members of the American Bar Association (ABA) and the American Psychological Association (APA) participated in an interdisciplinary task force, which led to three separate documents, including worksheets that may be useful in any assessment of capacity:
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges
The good news is that all three documents are available on the internet. The less good news is the documents are copyrighted and permission is needed to make additional copies for distribution to a group or audience. The handbooks have been available since 2006. Nonetheless, I suspect most attorneys, many psychologists, virtually all other medical professionals, and a heck of a lot of judges have never heard of the handbooks.
Any opinions about the usefulness of these handbooks to practitioners?
As a transformative movement in long-term care, "Culture Change" in the nursing home industry originated in 1997. In an article appearing in the October 2013 issue (Vol. 53, No. 5) of The Gerontologist, Professor Marshall B. Kapp (Florida State) contends that progress has been episodic and slow, in part because of "apprehension by staff, administrators, and governing boards about potential civil (tort) liability and regulatory exposure if residents suffer injuries that might arguably be attributed to facility conditions or policies that were inspired and encouraged by the culture change movement."
In "Nursing Home Culture Change: Legal Apprehensions and Opportunities," Professor Kapp uses the history of changes to dietary standards for meal service in nursing homes to illustrate his thesis. He urges specific strategies, including education of staff, residents and families, to promote positive innovations and ameliorate anxiety about legal consequences of change.
Thursday, September 26, 2013
If I were a guessing person, I would say the answer to that question is yes! As law profs, it seems we spend countless hours in front of our computers and on the Internet, researching, writing emails, and even teaching on-line. But we need to remember, not everyone goes on-line. A new Pew report gives us some insights into those who do not use the internet and the reasons why.
Kathryn Zickuhr's report, Who's Not Online and Why was released on September 25, 2013. Among the findings:
- 34% of non-internet users think the internet is just not relevant to them, saying they are not interested, do not want to use it, or have no need for it.
- 32% of non-internet users cite reasons tied to their sense that the internet is not very easy to use. These non-users say it is difficult or frustrating to go online, they are physically unable, or they are worried about other issues such as spam, spyware, and hackers. This figure is considerably higher than in earlier surveys.
- 19% of non-internet users cite the expense of owning a computer or paying for an internet connection.
- 7% of non-users cited a physical lack of availability or access to the internet.
The report breaks down the data by gender, age, ethnicity, education, household income, and community. Page 9 of the pdf version of the report summarizes information about the 65+ non-user:
Adults ages 65 and older are significantly more likely than any other age group to be
offline, with 44% saying they don’t use the internet or email; among the next
youngest age group, adults ages 50-64, only 17% don’t go online. If we narrow
our focus to members of the G.I. Generation, those born in 1936 or earlier
(ages 77 and older in 2013), a full 62% don’t use the internet or email.
Overall, adults ages 65 and older account for almost half (49%) of non-internet users by age group.
Asked whether they would be able to start using the internet in the future, just 13%
of non-internet users ages 65 and older said they would know enough to go online,
while 66% say they would need help. Just 5% of offline adults in this age group
say they would like to start using the internet or email.
Finally, 44% of non-internet users ages 65 and older have asked a friend or family
member to look something up or complete a task on the internet for them, a rate
similar to other offline adults.
The full report can be accessed here.
Three recent articles in the New York Times tackle three discrete topics on long-term care. The first, by Steven Greenhouse, U.S. to Include Home Care Aides in Wage and Overtime Law was published on September 17, 2013. His article reported that the Department of Labor will include home care workers under the overtime and minimum wage protections, although the changes do not take effect until January 1, 2015. A portal on the DOL website offers more information for employers, workers and families using home health workers.
The second article, the September 18th, 2013 post in Paula Span's New Old Age Blog, focused on Daughters (Still) Are the Caregivers. The post discusses a recent study by Drs. Pillemer and Suitor about which of the adult siblings was likely to be the caregiver for the mother and found that "[t]he decision came down to gender: daughters were more than twice as likely to become caregivers as sons. And proximity: children within a two-hour drive were six times likelier to provide care than those farther away." The results of the study were published in The Gerontologist.
The final article, also a post in the New Old Age Blog (this one by Judith Graham published on September 19th, 2013) covers the recommendations of the federal Long Term Care Commission (about which we had previously written). This post is titled No Easy Answers on Financing Long-Term Care. Focusing on how to pay for long-term care, the article quotes some disappointed commission members, including Judy Stein, past NAELA president and Executive Director of the Center for Medicare Advocacy (note: in full disclosure, I sit on the CMA board), Judy offers
“The vision in the majority report is not much more than we have now,” she said. “It is, ‘Plan, understand, think about savings and insurance, and provide for those who are impoverished.’ That kind of approach doesn’t meet our long-term care needs now, and it won’t meet them in the future.”
While several of the commission’s recommendations are welcome, they will make a difference only “around the margins,” Ms. Stein said.
Interesting sources for a great class discussion.
HHS Approval of State's Cuts to Medicaid Reimbursement Rate Ruled Arbitrary & Capricious: 3d Circuit
In 2008, as required by federal law, Pennsylvania submitted proposed amendments to its State Medicaid Plan for approval by the U.S. Health and Human Services (HHS). The amendments created an across-the-board 9% reduction in the per diem reimbursement to nursing homes for care of residents eligible for Medicaid. The amendments were approved by HHS.
In 2009, a group of private nursing homes in Pennsylvania filed suit challenging the cuts, arguing the "BAF" method used to calculate the reductions failed to consider the impact of the cuts on quality of care, particularly after several years of cuts. The nursing homes sought declaratory and injunctive relief against officials at the federal HHS and Pennsylvania Department of Public Welfare (DPW), as well as monetary relief.
On September 19, 2013, the Third Circuit granted partial relief to the nursing homes, concluding there was no record by which HHS could make a proper review of the modifed state plan. The Court observed:
"Absent information on how the appropriated amount was determined, or a reasoned explanation for why that amount allows for rates that are 'consistent with' efficiency, economy, quality of care, and adequate access, DPW's description of the BAF methodology provides no insight into whether the [State Plan Amendment] complies with Section 30(A). The state gave no such information, and HHS did not request any. There are no studies or analyses of any kind in the record, and the only 'data' DPW provided was a spreadsheet comparing rates under the proposed SPA with those paid the previous year. HHS therefore had to base its approval decision solely on the proposed methodology itself, a comparison to the previous year's rates, and DPW's unsupported assertion that the new BAF would permit 'payment rate increases sufficient to assure that consumers will continue to have access to medically necessary nursing facility services.'”
While recognizing that state plans approved by federal agencies ordinarily warrant Chevron deference, the Third Circuit concluded deference was inappropriate in this instance. The court could not discern from the record a reasoned basis for the agency's decision and therefore the judges concluded HHS's "approval of the [2008 Amendments] was arbitrary and capricious under the APA."
Cuts to Medicaid reimbursement rates for nursing homes eventually affect residents, of course. Could states that skip key steps in approval for other changes to State Plans also be subject to due process challenges?
For the Third Circuit's detailed and technical decision, including reasons for its denial of monetary relief, see Christ the King Manor, Inc, et al v. Secretary of HHS.
Wednesday, September 25, 2013
A new report shows that the Affordable Care Act will deliver on its promise to make health insurance more affordable and accessible for Americans who need it. Download the full report
The report, released by the Department of Health and Human Services (HHS) finds that in state after state, affordable options will be available through the Health Insurance Marketplace in 2014. Nearly all eligible uninsured Americans (about 95%) live in states with average premiums below earlier projections. And nearly all consumers (about 95%) will have a choice of health insurance companies,each of which offers a number of different plans.
The Marketplace will be run in partnership with States or fully by the HHS in 36 states. In these states, on average, consumers will have a choice of 53 health plans (bronze, silver, gold, and platinum plans), and young adults will have the additional option of low-cost catastrophic or youth plans.
Use Whitehouse.gov's clickable map to explore a summary of the choices and premiums expected in those 36 states. Final, complete information about all the plans in each state Marketplace will be available via HealthCare.gov on October 1.
The National Senior Citizens Law Center recently released "Why SSI Needs an Appeal Process that Works," NSCLC's first white paper describing the fate of non-disability claimants who experience improper suspensions or reduction of Supplemental Security Income (SSI) benefits, serious problems compounded by the lack of an effective and fair appeals process. Working with Legal Service programs and advocates around the country, NSCLC has identified pervasive flaws in the system, including the Social Security Administration's failure to:
- Process appeal requests;
- Continue benefit payments during the appeal;
- Conduct conferences required by law; and
- Issue adequate written decisions, permitting effective review or reconsideration.
These due process violations often go unchallenged because of the inability of claimants to find attorneys skilled or interested in handling appeals. The Social Security Act does not provide for awards of attorneys fees to successful claimaints on non-disability SSI appeals. On almost all levels, the system is stacked against the non-disability SSI claimant. NSCLC attorney Kate Lang explains:
"For the low-income individuals who depend on SSI benefits to access housing, food, medical care and other necessities, their inability to pursue an appeal effectively can have immediate, severe consequences. When their income is incorrectly stopped or reduced, these vulnerable individuals face hunger, homelessness and the inability to access vital medications."
NSCLC attorneys are advocates for the nation's elderly poor, and urge specific systemic change. For news stories tracking NSCLC projects to secure the health and financial security of older persons, see NSCLC in the News.
Tuesday, September 24, 2013
- Get some exercise. Lack of exercise can lead to weak legs and this increases the chances of falling. Exercise programs like Tai Chi can increase strength and improve balance, making falls much less likely.
- Be mindful of medications. Some medicines—or combinations of medicines—can have side effects like dizziness or drowsiness. This can make falling more likely. Having a doctor or pharmacist review all medications can help reduce the chance of risky side effects and drug interactions.
- Keep their vision sharp. Poor vision can make it harder to get around safely. To help make sure they're seeing clearly, older adults should have their eyes checked every year and wear glasses or contact lenses with the right prescription strength.
- Eliminate hazards at home. About half of all falls happen at home. A home safety check can help identify potential fall hazards that need to be removed or changed, like tripping hazards, clutter, and poor lighting.
- Install handrails and lights on all staircases.
- Remove things you can trip over (like papers, books, clothes, and shoes) from stairs and places where you walk.
- Remove small throw rugs or use double-sided tape to keep the rugs from slipping.
- Keep items you use often in cabinets you can reach easily without using a step stool.
- Put grab bars inside and next to the tub or shower and next to your toilet.
- Use non-slip mats in the bathtub and on shower floors.
- Improve the lighting in your home. As you get older, you need brighter lights to see well. Hang light-weight curtains or shades to reduce glare.
- Wear shoes both inside and outside the house. Avoid going barefoot or wearing slippers.
That is the big question, isn't it? It is such an individual decision, complicated by many factors. Dear Abby got the nuances of the issue in her September 4th column, where she was asked by a reader why older workers keep working to the detriment of younger workers. Of course, Dear Abby (or her daughter to be more accurate) understands when an answer isn't clear cut. In fact the question of if or when to retire is one that draws the classic law school answer: "it depends."
As we posted on this subject previously, the New York Times ran a special on retirement and there are a number of calculators and other information available to help someone decide the if and when of retirement.
As Dear Abby noted in her answer to the young correspondent,
Many older people work longer these days not to live lavish lifestyles, but to survive.
Unless you have a crystal ball that enables you to see what seniors have in the bank, it’s presumptuous to say someone should retire. Many seniors are unprepared financially to do so through no fault of their own. And while you may think now that you’ll take a reduction in pay when your sons are out of college, it remains to be seen if that will be feasible for you when the time comes.
AARP featured the Dear Abby column in a September 9, 2013 blog post by Carole Fleck. The post concisely offers up a discussion of older workers' situations, cites some good studies, including one about the impact on younger workers' job opportunities when older workers remain employed. The post also suggests that the financial picture of many of those older workers isn't that rosy.
A recent chartbook by Monique Morrissey and Natalie Sabadish was published by the Economic Policy Institute (EPI): Retirement Inequality Chartbook: How the 401(k) revolution created a few big winners and many losers. The chartbook examines the impact from the shift from defined benefit to defined contribution pensions to augment Social Security (remember that three-legged stool?) The overview of the report notes that a large number of elders in the U.S. are relying on 401(k)s instead of defined benefit pensions of a few decades back and goes on to explain that this report weighs the effect of moving from defined benefits to defined contributions "by examining disparities in retirement preparedness and outcomes by income, race and ethnicity, education, gender, and marital status." The overview concludes on page 7 with an "uh-oh" assessment:
The trends exhibited in these figures paint a picture of increasingly inadequate savings and retirement income for successive cohorts and growing disparities by income, race, ethnicity, education, and marital status. Even women, who by some measures appear to be narrowing gaps with men (in large part because men are faring worse than they did before) are ill-served by an inefficient retirement system that shifts risk onto workers, including the risk of outliving one’s retirement savings. The existence of retirement system that does not work for most workers underscores the importance of preserving and strengthening Social Security, defending defined-benefit pensions for workers who have them, and seeking solutions for those who do not."
A pdf of the chartbook is available for download here. (And there is a nifty interactive feature available, too--see page 7). While we're at it, take a look at Ross Eisenbrey's "snapshot" from August 14, 2013, Social Security Is the Only Reason Most Americans Can Afford to Retire, noting that despite the use of 401(k)s, Social Security is the go-to program for retirement savings.
While we are on the subject, Employee Benefit Research Institute (EBRI) publishes Fast Facts. The September 17th, 2013 Fast Facts was on whether an employee could delay retirement. Referring their Retirement Confidence Survey (RCS), the Fast Fact notes that the RCS continually shows that a significant number of workers retire sooner than they intended, with most doing so for undesirable reasons.
So back to the if and when questions about retiring: the when question may never be answered if the answer to the "if I can afford to retire" question is no.
For a number of years, I have taken on the interesting task of researching resident rights and financing or governance issues for "Continuing Care Retirement Communities" or CCRCs, an important part of the network of senior living options in the U.S. One of the many strengths of CCRCs is the way residents and administrators pull together to respond to a crisis or handle a challenge.
Frasier Meadow Retirement Community, a CCRC in Boulder, was hit hard by the recent devastating flooding in Colorado. The Assisted Living area was severely damaged, requiring relocation of AL residents. The good news is that the relocations were accomplished safely, and the hard work of clean-up and reorganization has begun. Regular updates on the Frasier website and social media connections have helped to keep families and friends up-to-date.
Hat Tip to Walt Boyer, board member at the National Continuing Care Resident's Association or NaCCRA, for information on Frasier's early recovery efforts.
Monday, September 23, 2013
Touro Law this summer announced the creation of the Longevity and Aging Law Institute. Professor Artusio will direct the Institute. The idea for the Institute came from Bob Abrams, who will chair the advisory board. According to the press release:
The Institute has been designed to provide attorneys and other professionals with the information and resources they need to serve the 100 million Americans who are 50 years of age or older. Through Touro Law Center’s Continuing Legal Education (CLE), the Institute will provide CLE programs and continuing education credits for programs developed for other licensed professionals such as social workers. The Institute will address a wide variety of educational topics, including fragility of capacity, adult children with special needs, bankruptcy, confidentiality, emergency preparedness, estate planning and administration, financial planning, grandparents’ rights, mental health issues, retirement, taxes and many others. As the Institute grows, plans include a research agenda focused on law and public policy in the area of longevity and aging law.