Friday, November 29, 2013
Via The Hill:
ObamaCare has saved seniors and people with disabilities nearly $9 billion in prescription drug costs, according to data touted Tuesday by the Obama administration.
According to the Centers for Medicaid and Medicare Services, 7.3 million people who reached the “doughnut hole” in their Medicare prescription drug coverage have saved $8.9 billion on their prescription drugs since the law was enacted in 2010. That’s an average savings of $1,209 per person.
The “doughnut hole” refers to the gap in prescription drug coverage in which seniors must shoulder the full costs. Coverage under Medicare Part D provides an initial coverage limit on insurance and catastrophic coverage once costs hit a certain threshold. In between, seniors must pay the full costs.
To close the hole, the government, under the new healthcare law, will cover more and more of the value of brand-name and generic drugs until 2020, when seniors will be responsible for 25 percent of the cost for each.
The CMS also said more people are increasingly being helped by the fix.
In the first 10 months of 2013, about 3.4 million people got help, compared to 2.8 million in all of 2012.
We've made a number of blog posts about aging prisoners in the US. It seems that other nations are grappling with this issues, as well. Via The Age:
In Hollywood prisons old crooks don't die, they get parole and live out their days in Mexico. In real life the world over, prisoners are growing old in prison and will in ever greater numbers die there, often after suffering from chronic physical and mental illnesses.
But the vast majority of prisons are not set up to deal with older people, and most conventional aged-care facilities are not equipped to deal with residents with a criminal history. Many inmates lose family and friendship networks when they're inside. What, then, is to be done for our older prisoners? And do we actually care?Advertisement
Older prisoners are defined as those aged from 50 because they tend to have the health profile of people in the general population who are 10 years older, according to a 2011 Australian Institute of Criminology report. In the decade to 2010, the number of older inmates in Australia rose by 84 per cent, to more than 3300. The greatest rise, at 140 per cent, occurred among those aged over 65.
Susan Baidawi is a research fellow at Monash University and author of two reports on Australia's ageing prisoners: the 2011 AIC report and a yet-to-be-released Strategic Framework for the Management of Australia's Ageing Prisoners.
Baidawi says the ageing of the population generally is a minor contributor to the rise; changes in sentencing laws, including mandatory minimums, have also had an impact. But she says there is a greater number of people being convicted of historical offences, particularly sexual offences in the case of men.
"Older prisoners tend to have been convicted of crimes that are more serious in terms of sex offences, homicide and drug-related offences. Those offences attract longer sentences."
Thursday, November 28, 2013
Generations is the journal for the American Society on Aging. The most recent volume is devoted to topics involving person-centered care. The volume on person-centered care for individuals with dementia is divided into four sections: Overview, Person-Centered Care for People in Different Stages of Dementia, Person-Centered Care for People with Dementia Who Live in Different Settings and Person-Centered Care for People with Dementia in Medical Care Settings and During Care Transitions. The volume contains 19 articles, many of which are available on the website. Check it out!
Devolution, the process in the United Kingdom by which Scotland, Wales and Northern Ireland are enacting domestic laws and policies separate from the laws of England, has opened important opportunities to consider the needs of older persons.
Over the Thanksgiving weekend, I'm in Northern Ireland, working with great colleagues at Queen's University Belfast, on two projects commissioned by the Commissioner of Older People Northern Ireland (COPNI). One team is working on elder abuse and the other project focuses on social care, with each team employing comparative analysis from the U.S., Canada, Ireland, India and other nations in framing proposals for future laws or policies to be recommended for adoption in Northern Ireland.
Via the Minnesota Department of Human Resources:
that Minnesotans with disabilities have the right to live, work, and enjoy life in the most integrated setting is available online after being submitted to the court for final approval. The plan charts a course that will change the way state government provides supports and services for people protected by the Americans with Disabilities Act of 1990. The Olmstead Plan (PDF), which is named after a 1999 U.S. Supreme Court decision that enumerated the rights of people with disabilities, is now posted online. After months of discussion at public meetings, testimony from people with disabilities and their families and many others, the Olmstead Sub-Cabinet has issued the draft plan.
I say: after almost fifteen years, isn't it about time?
Wednesday, November 27, 2013
There is much to be grateful for on Thanksgiving, including family and friends. I completely agree with Becky's wonderful words of appreciation when she expressed "thanks giving" for caregivers. My thanks include my heroic mother (heading a caregiving team at age 88!), amazing sister and a whole team of talented additional folks.
Let me suggest an additional focus for thanks giving this season: our long-serving colleagues in the law, whether they be senior faculty members, senior judges, or senior lawyers. Perhaps it is just a bit too easy for younger generations to overlook the fact that our paths have been blazed by others, including many who continue to serve, giving new meaning to "golden" years.
And in this spirit, I am grateful to one of my own colleagues, Louis Del Duca, who has served The Dickinson School of Law for more than 57 years. He has been, and continues to be, a vital part of the development of national and international commercial law. He is a role model for scholars to embrace and understand new theories and technologies, such as his work with on-line dispute resolution for consumer and business issues. His legal scholarship also recognizes the importance of multiple audiences. Professor Del Duca has written books and articles directed to students, consumers, academy-based scholars, practicing attorneys, and tribunals on local, state, national and international stages. With his wife, Frances, also an attorney, the Del Duca home in Carlisle has been the site of many a warm and friendly evening with interesting collections of friends from the neighborhood -- or who are visiting from around the world. Thank you, Lou and Frances.
I suspect most of our readers have colleagues equally deserving of appreciation and thanks during the Thanksgiving season. Best wishes to all on this special day.
I was reading the NYC Elder Abuse Center's recent Elder Justice Dispatch about the Jewish Association Serving the Aging (JASA) innovative program titled Legal, Social Work, Elder Abuse Program (LEAP). JASA works "to sustain and enrich the lives of the aging in the New York metropolitan area so that they can remain in the community with dignity and autonomy." JASA offers a lengthy menu of services for NY elders, including meal programs, advocacy, home care services and senior centers (23 to be exact).
LEAP provides both lawyers and social workers who have undergone training to represent those 60+ who have been victims of elder abuse. The services provided include restraining orders, support, safety planning, emergency housing, legal representation, legal advice and medical help.
Earlier this month I sent three of my students to NALI. NAELA members and others were welcoming, and the students learned so much there! I've asked the students to write some blog posts about their experiences, and will be posting these over the next few days. This one is by my RA Regan Bovee, who will graduate in December with a JD from William Mitchell and a Health Compliance certificate from Hamline.
My Experience at the NAELA National Aging and Law Institute
On November 7th-9th I had the incredible opportunity to attend the NAELA National Aging and Law Institute as a third-year law student. The conference began with a discussion on the budget and policy landscape and what can be expected in the next year. From there, I attended a whirlwind of sessions about everything from designing an elder friendly office to a funny and informative panel featuring staff from the Center for Medicare Advocacy playing “Wait, Wait Don’t Tell Me.”
Jonathon Blum, the Deputy Administrator of the Centers for Medicare and Medicaid Services and Director of the CMS Center for Medicare spoke about Medicare’s ‘observation status.’ Among other topics, he discussed accountable care organizations (ACOs), which are groups of health care providers accountable for quality and cost of healthcare for beneficiaries in traditional fee-for-service care. Service quality is tied to an ACO’s rating.
Mr. Blum said that prior to the implementation of the Affordable Care Act (ACA), fifteen percent of Medicare beneficiaries were in four or five star plans. It is now more difficult to meet the requirements of being labeled a four or five star plan, but CMS projects that by 2015 more than half of beneficiaries in private plans will be in a high ranking plan.
My highlight from the conference was the large amount of content that involved the ACA. Almost every session I attended mentioned the ACA in one way or another, whether it be transitioning from a healthcare exchange to Medicare or the impact the ACA is having on long term care services. The final session, given by David Lillesand, focused solely on the ACA and addressed many common complaints such as, “my insurance plan is skyrocketing” and “why do men have to have maternity coverage?”
Mr. Lillesand also discussed the impact the ACA will have on personal injury law, since a large percentage of personal injury claims often goes toward future medical costs associated with having preexisting conditions and no longer being able to find coverage. With preexisting conditions no longer affecting coverage, the amount awarded in personal injury suits may decrease drastically.
It was such a wonderful experience being surrounded by elder law experts and having the opportunity to listen to them speak about topics that are so relevant. I left the conference feeling very inspired and excited to enter the field of elder law.
--by Regan Bovee (JD expected December 2013, William MItchell College of Law)
The other night I was working away writing posts for this blog, when I happened to notice an email somehow caught in my junk mail filter. This email was from the "FBI" and contained excellent and exciting news (by now, I hope you realize my tongue is planted firmly in my cheek). This email informed me that I had won $800,000 in the UK National Lottery. This email was signed by "James Brien Comey FBI DIRECTOR" which caused me some consternation since James B. Comey is the Director of the FBI, as I confirmed by googling it, but I don't think it came from Director Comey since the email doesn’t use FBI or .gov in the address (just guessing).
Of course, I have a long history of luck from total strangers in other countries. In fact, I once won a Brazilian lottery .... twice...in the same day....even though I've never been to Brazil. I clearly have a highly trusted profile on the internet--or maybe my face is just one of those trustworthy ones, because it seems that I get a fair number of emails from folks in other countries who are just trying to do the right thing and keep their corrupt governments from profiting from the government's bad acts. And despite the fact I have not practiced law for almost 3 decades, I keep getting emails from folks who want to hire me to represent them to collect back child support, or outstanding loans for businesses or for some type of business deal.
I mentioned my good luck to a colleague. Turns out she was lucky as well, since she also won the UK National lottery and coincidentally the exact same amount as I did...on the same day. Wow. But now, I think I have her beat because a few days later I got FIVE emails, two wanting to hire me, one in another language (but I think I won something) and two informing me of my continued my good fortune. I won another lottery, this time in Asia (to the tune of $5 Million).
But wait, the last email had even more exciting news, from the "International Monetary Fund" no less (if you believe they use a Hotmail email account). I am either a victim of a scam, a contractor, a lottery winner or a beneficiary and am entitled to $8.5 MILLION. Not to appear greedy, but I've decided not to respond until I win at least One BILLION Dollars (with apologies to Mike Myers as Dr. Evil).
Needless to say, I was thrilled to see the Senate Committee on Aging's press release (we covered it in a post on November 14, 2013 ) about the hotline for consumer scams. We clearly need to be more proactive in protecting elders from scams. As the holidays approach, you can believe we will see even more scams. So since I didn't really win the UK Lottery, am not accepting outside legal work, or entitled to any of these wonderful windfalls, I better go prepare for my class.
As we end the semester and approach Thanksgiving, three thoughts converged into this one post. November is National Caregivers Month. We all know that caregiving is a 24/7, 365 job with no end date, so services available to caregivers are particularly important. I’ve been thinking about how to write about it other than say “hey this is National Caregivers Month”. So here is what I came up with for you.
I always try to instill in my students a sense of reality about elder law. I emphasize to them that the cases we read are not just an abstract exercise but are about real people and real lives. When they practice law, they represent actual clients, not hypotheticals from a casebook.
My sister is an actual case in point; she is a caregiver by acceptance, and perhaps by choice. (I live half-way across the country from them). My sister is one of the strongest people I know. She is also a caregiver for my 80-something mom. After years of providing supportive caregiving for my mom, as my mom’s needs changed, my mom moved in with my sister, so my sister is one of those 24/7, 365 caregivers. For a while she juggled a job, a life and caregiving. Her job is now my mom and her 8 year old grandson (life happened and my sister stepped up and obtained guardianship over her 8 year old grandson). So she’s now a multi-generational caregiver. Somehow she has managed to maintain the energy, innovation and enthusiasm needed to raise an 8 year old boy tempered with the patience and caring needed by our mother. Day in, day out. As I said, she’s one of the strongest people I know.
The Administration on Aging offers some statistics about caregivers: almost 30% of folks in the US are caregivers for a person who is ill, elderly or has a disability. As we all know, like my sister, there are more women who are caregivers than men (AoA estimates 2/3). There are also a list of programs and services for caregivers on the AoA site and the Administration for Community Living site. AARP as well offers resources for caregivers, and I'm sure there are more.
So here is how I tied together these 3 separate thoughts. We all have a likelihood of becoming caregivers at some point in our lives. I can tell my students about my sister, to help them personalize the lesson about family caregivers while I teach them about personal services contracts, joint ownership of assets, property management techniques, fiduciary obligations, and more. And Thanksgiving falls in November, National Caregivers Month, so on Thanksgiving this year, let’s add a thank you to all the caregivers out there. They truly do ROCK!!!
About 80% of Continuing Care Retirement Communities (CCRCs) in the U.S. operate as 501(c)(3) tax-exempt organizations. Over time, what were once fairly humble establishments with strong church or fraternal organization ties, have expanded to serve the needs and interests of their clientele. In some instances, the facilities and amenities are now distinctly "high end," operating with lighter affiliations to religion or other charitable groups. Increasingly, for-profit management companies are hired to provide the day-to-day services.
Understanding the reasons to exempt CCRCs from federal income taxes takes a bit of history. For example, in 1972, the IRS issued Revenue Ruling 72-124, noting that providing for the "special needs of the aged has long been recognized as a charitable purpose" for Federal tax purposes. As such, a CCRC was viewed as relieving the distress of aged persons by providing for the primary needs of such individuals for housing, health care, and financial security. Thus, a CCRC could be treated as tax exempt under Section 501(c)(3) of the Code as an entity organized and operated exclusively for charitable purposes.
State and local tax authorities, however, may employ a more exacting standard on CCRCs in order to qualify for charitable tax exemptions, including property tax exemptions. For a thoughtful analysis of the different standards, see "The Commerciality Doctrine as Applied to the Charitable Tax Exemption for Homes for the Aged - State and Local Perspectives," by Professor David Brennan (Kentucky Law), published in Fordham Law Review in 2007, and still very relevant.
Tuesday, November 26, 2013
Man, how very cool is this!!! Via the Pittsburgh Tribune:
The Pittsburgh region's top prosecutor and one of its top businesswomen have created a $1 million endowment that will support the University of Pittsburgh's Elder Law Clinic.
U.S. Attorney David Hickton and his wife, Dawne Hickton, president and CEO of RTI International Metals named the endowment in honor of David Hickton's late mother, Gloria McDermott Hickton.
Gloria McDermott Hickton was an actress, a South Hills real estate agent for 35 years and one of the first members of the Pittsburgh chapter of the National Organization for Women, according to her obituary. She died in April 2013.
David and Dawne Hickton met while they were students at Pitt's law school.
The clinic's law students represent low-income senior citizens facing legal problems. William M. Carter Jr., dean of Pitt's law school, said the endowment helps meet the school's goals of providing students with practical experience and providing community service.
And to learn more about Pitt's elder law clinic, go here.
Via Yahoo News:
A man from Leeds, England has invented a dog-controlled washing machine. The "Woof to Wash" machine has a bark-activated "on" switch. A special "paw" button allows the pooch to easily open and close the machine's door. The inventor, John Middleton of U.K. laundry company JTM, intends for the "Woof to Wash" machine to make laundry an easier task for people living with disabilities by letting them delegate the trickier parts of the job to support dogs who have been trained to load and empty the machines. "We developed this machine because mainstream products with complex digital controls seldom meet the needs of the disabled user," he said. The Sheffield charity Support Dogs is training the animals to operate the new machines.
"People who are visually impaired, have manual dexterity problems, autism or learning difficulties can find the complexity of modern day washing machines too much," Middleton told Anorak. "I had been working on a single program washing machine to make things easier, and there was a lot of demand for it."
While working in Europe, I first heard the label "befrienders," as applied to people who work their way into the lives of disabled or elderly persons. The relationship often starts with the befriender doing small, helpful tasks; over time, the helper gains trust that enables him or her to have a greater role in the elder's life, thus opening the door to exploitation of the person's diminishing powers of judgment, while gaining complete control over finances.
On November 5, the New Hampshire Supreme Court affirmed convictions on nine of eleven criminal counts for "befriender" Karen Gagne, accused of stealing over $500,000 from a ninety year old woman in a retirement center. The case is State of New Hampshire v. Karen Gagne, 2013 WL 512499 (2013).
I plan to write more in the future about the technical details of the crimes charged in this context, but one of the clear lessons from the history in this particular case is how much time it may take for the befriending pattern to develop and "ripen" into fraud that is recognized by third-parties. For example, Karen Gagne's involvement with the victim spanned years:
"The defendant met the victim in the 1980s when the defendant performed landscaping services at the victim's home. The two became friends and subsequently lived together as companions in the victim's home for at least one year until the victim asked the defendant to move out. In the summer of 2006, the defendant and the victim rekindled their friendship. The victim moved to Pleasant View Retirement Home (Pleasant View), and the defendant began driving the victim to doctors' appointments and nail appointments, and taking her to lunch. In addition, although the victim had previously had an accountant pay her larger bills, the defendant began handling the victim's bills, including payment of her rent at Pleasant View."
At some point, "helpful" friend Gagne began liquidating the elder woman's annuities or other property and borrowing additional money under the elder's name.
The fact that Gagne was giving herself gifts might not have been discovered, except that by the fall of 2008, Gagne was no longer making regular rent payments to the retirement home. She offered excuses, such as blaming a "grandson or nephew" for stealing money, and claimed that she, Gagne, was trying to "recover" the money in order to pay the victim's bills. By late 2009, the victim was so far behind in rental payments -- and the excuses had become so unbelievable -- that the facility's executive director contacted the Attorney General's office, thus leading to the criminal charges.
Having sat through trials of similar cases, and having read transcripts of other cases, I can just imagine how Gagne would try to justify her thefts, arguing that "her friend wanted her to have the money" to explain why the 90-year old woman had "signed" checks she wrote out for her. In fact, this "gift" argument actually worked as a defense to two of the criminal counts in the case, where the older woman had personal involvement in transactions. Nonetheless, on the majority of criminal counts, the Supreme Court concluded "the defendant was not privileged to infringe upon the victim's interest" in joint accounts, nor was Gagne justified in misapplication of funds she was handling as a "financial representative" of the elder.
Karen Gagne was originally sentenced to "an aggregate of 10 to 30 years in New Hampshire State Prison for Woman." It is not clear from the opinion whether remand on the overturn of two of the elevent counts would trigger a resentencing.
New Hampshire, by the way, is the state that recently passed a new law, permitting long-term care facilities to sue "fiduciaries" who misuse assets of a resident, if that misuse results in "disqualification" of the resident for Medicaid, as we discussed earlier this month.
Free webinar: From Plan to Practice: Implementing the National Alzheimer's Project Act in Your State
From WBUR public radio in Boston Massachusetts, a story and podcast on "at-home funerals."
For a number of years I have invited an attorney with expertise in alternative funerals to speak to my classes. In fact, that is how I first learned that Costco carries urns and caskets (with a choice of standard or expedited shipping -- which strikes me as a trick question). As outlined by WBUR in the article, there is a surprising amount of freedom, if that is the right word, in the law of many states for families to choose informal funerals and burials.
Hat tip to Ann Murphy at Gonzaga Law for sharing this link. Our readers definitely are the key in helping to make this a "full service" blog!
In central Pennsylvania, WITF, our local public radio station, has a great, daily, hour-long program wth "Smart Talk" on hot topics, often drawing upon local experts. Recently, the program was on hospice services and palliative care, and it sparked thoughtful conversation and dial-in questions. The program is now available as a podcast. November is "National Hospice & Palliative Care Month."