Tuesday, July 17, 2018

Reading Statistics in Senior Housing Trends

A recent newsletter article written for investors in senior housing (mostly REITs) captures a curious U.S. dynamic.  The population of older persons is rising; occupancy in senior housing is mostly down; rental rates in senior housing are going up.  Push, pull, push.  And despite a clear 12-month downward trend in occupancy rates, another push, as new construction in senior housing is still robust.  The Seeking Alpha article (fully available behind a registration firewall) summarizes:

In 2017, 45,000 new units of supply were delivered into the [senior home] market. To put this in perspective, approximately 140,000 people turned 83 in 2017, which is close to the average age in senior homes.  Currently about 10% in this age group reside in senior homes.  So, with 140,000 people turning 83, and additional demand was created for about 14,000 home units.  You can hence see where a 45,000 unit supply can create a decrease in occupancy.  

After analyzing returns in three specific REITs, the newsletter make a broader prediction that is relevant beyond the context of investment advice: 

There might be light at the end of the tunnel.  The same inflationary forces that are making life difficult for senior home operators are beginning to bite the senior home construction companies.  From labor shortages to rising lumber prices, they are not facing a different cost curve than they did a few years back.  Their ability to pass some of this is currently limited as purchasers of said properties are struggling to pass on higher rents to operators.  If this actually succeeds in slowing down the supply, senior housing could become a great investment concept once again.  

My own reaction to this type of an article (and I see a lot of articles that attempt to explain drops in senior occupancy) is that no one has successfully integrated the impact of state and federal government policies on funding (limited though that funding may be) for home care, nor the strength of the "age in place" preference of future seniors.  

July 17, 2018 in Consumer Information, Current Affairs, Housing, Property Management | Permalink | Comments (0)

Monday, July 16, 2018

The Future For The Aging Demographic?

The National Academies Press has released Future Directions for the Demography of Aging.This volume contains the proceedings of a workshop and the overview explains

Almost 25 years have passed since the Demography of Aging (1994) was published by the National Research Council. Future Directions for the Demography of Aging is, in many ways, the successor to that original volume. The Division of Behavioral and Social Research at the National Institute on Aging (NIA) asked the National Academies of Sciences, Engineering, and Medicine to produce an authoritative guide to new directions in demography of aging. The papers published in this report were originally presented and discussed at a public workshop held in Washington, D.C., August 17-18, 2017.

The workshop discussion made evident that major new advances had been made in the last two decades, but also that new trends and research directions have emerged that call for innovative conceptual, design, and measurement approaches. The report reviews these recent trends and also discusses future directions for research on a range of topics that are central to current research in the demography of aging. Looking back over the past two decades of demography of aging research shows remarkable advances in our understanding of the health and well-being of the older population. Equally exciting is that this report sets the stage for the next two decades of innovative research–a period of rapid growth in the older American population.

Part 1 looks at trends in health and health disparities, Part 2 examines the implications of social and environmental factors, Part 3 covers families and intergenerational issues, Part 4 covers employment and retirement, Part 5 discusses cognitive issues and disability, Part 6 reviews global aging and Part 7 offers new approaches. You can purchase the softcover book here, download a free pdf of the book by clicking here or read the book online.

 

July 16, 2018 in Books, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, International, Retirement, Science, Statistics | Permalink | Comments (0)

PA Elder Law Institute Session on CCRCs and LPCs Will Discuss Pending Legislation and Indicators on Financial Performance

As I mentioned earlier, Pennsylvania's annual Elder Law Institute is July 19 and 20 in Harrisburg.  On the morning of the first day, I'm on a panel examining new issues in Continuing Care Retirement Communities (and Life Plan Communities), along with Linda Anderson, an elder law attorney, Kimber Latsha, who frequently represents health care and senior living providers including CCRCs, and  Dr. David Sarcone, a Dickinson College business professor with background in accounting and health care management.  

I'm especially looking forward to the discussion of Pennsylvania 2018 House Bill 2291, introduced in April of this year, but already moving from one committee, to its first of three considerations on the floor, to the Rules Committee, with amendments.  In other words, this bill seems to have "legs."  The sponsors of the bill are calling it an "Independent Senior Living Facility Privacy Act."  As with most catchy titles for pending legislation, the details are a bit more complicated.  In this instance the bill's lead sponsor is from a county where a single CCRC was investigated by the State Department of Human Services following a complaint that "staffing levels" were inadequate, leaving certain residents allegedly at risk.  The Department of Human Services issued an adverse order in May 2017 related to certain aspects at the facility and apparently that order is the subject of administrative appeals.  

The provider contests the order, and in written testimony submitted to the Pennsylvania House Committee on Aging and Older Adults Services, the CEO explained his company's position that the investigators were abusing their authority by entering independent living (IL) units, questioning IL residents, and thus failed to respect the individual autonomy of residents not actually living in "personal care" facilities, facilities that would be subject to HS authority:

"We feel that DHS is inappropriately applying the term 'premises' [from the personal care regulations] as the grounds and building on the same grounds, used for providing personal care services.  Each senior apartment is a 'separate individual leasehold,' where an inhabitant, the lessee of the apartment leases an apartment and is afforded the enjoyment and freedom to engage family and third party services."

At the core of this issue is a question about expectations of the public and the residents about care in "independent living" units of a licensed "continuing care community." (Pennsylvania has at least one pending wrongful death suit involving an entirely different CCRC, where one issue is whether the CCRC's alleged awareness of an IL resident's worsening dementia was ignored.  She allegedly died of complications of exposure after wandering and being locked out of her IL apartment complex on a cold night.) 

The proposed legislation would exclude "independent senior living facilities" (including public housing outside of the CCRC context) from future state Human Services investigations, including investigations by the Long-Term Care Ombudsman. 

I expect we will also be talking about financial performance numbers of both for-profit and nonprofit CCRCs -- especially as some of the numbers suggest that both sides of the industry may be struggling to "live within their means."  

In other words, there will be some especially "hot" topics for discussion.  

July 16, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Sunday, July 15, 2018

Another Look at What Can Happen to Refundable Fees In Troubled CCRCs

Over the weekend, a reader asked about the ultimate outcome of a Chapter 11 Bankruptcy reorganization, involving Sears Methodist Retirement System's CCRC properties in Texas, that we reported on back in 2014.  The specific question was "what happened to the refundable entrance fees?"

The bankruptcy court approved escrow and repayment terms of refundable fees for "certain" residents as part of a proposed reorganization plan, with the purchaser(s) of one or all of the 8 involved CCRCs having the option of "assuming" or reaffirming resident agreements; but I need to research more to find out the ultimate outcome, once the dust settled.   I've reached out to a few folks to see if there was a final accounting. 

In picking up the research on the Sears Methodist case, that reminded me I had not reported in this blog on another CCRC bankruptcy court proceeding, filed as a reorganization under Chapter 11 in late 2015 involving what was then known as Westchester Meadows CCRC in New York.

The August 23, 2016 opinion for In re HHH Choices Health Plan, LLC  is interesting, thoughtful, and remarkably accessible for nonlawyers.  The issues addressed carefully include:

  • Where the debtor in the Chapter 11 proceeding is a nonprofit organization, what rules apply for possible for-profit and nonprofit bidders?   For example, could state law governing and limiting transfers of assets of a nonprofit organization apply?  The Court concludes that although a new operator would need to comply with state laws (such as the Department of Health's licensing rules), the Bankruptcy Code controls bidding and sale of a bankrupt debtor's assets.
  • What standards apply if one bidder, for a lower price, would continue operations as a nonprofit, while the other bidder, for a higher price (and thus more attractive to unsecured creditors), would convert to for-profit operations?  Here, the Court observes that New York state law makes it "clear that price alone is not determinative, and that fulfilling the corporate mission can be decisive if creditors are all being paid in full."   However, that rule was "clear" only if all the debtor's creditors would be fully paid, which would not be the outcome here.  After careful consideration of case precedent, the Court concludes it can confirm a lower-priced sale of the assets, where the buyer satisfies certain standards and is better aligned with the charitable mission of the operation, including in this instance protection of the interests older residents.

The Court's concludes:  

Continue reading

July 15, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 13, 2018

More on California's Aid-in-Dying Law

We have blogged a couple of times at least about California's Aid-in-Dying law, most recently about the judge declaring the law unconstitutional. While the constitutionality issue makes its way through the court system, California in late June released statistics to show how many folks had previously availed themselves of the law. The New York Times reported that Nearly 400 People Used California Assisted Death Law in 2017.

Here are some statistics from the article:

374 terminally ill people took drugs to end their lives in 2017, the first full year after a law made the option legal....

577 people received aid-in-dying drugs last year, but not everyone used them....

Of the 374 who died, about 90 percent were more than 60 years old, about 95 percent were insured and about 83 percent were receiving hospice or similar care. The median age was 74....

Most of the recipients were college educated and receiving hospice or similar care....

The 374 people who died include 11 people who were prescribed drugs in 2016 but died last year.

Another 86 people were prescribed the lethal drugs but died without taking them, while the fate of the remaining 128 people wasn't reported.

July 13, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, July 12, 2018

Consumer Credit Security Freezes for Free on September 21, 2018.

The National Center for Law & Elder Rights (NCLER) has released a fact sheet explaining a new law that allows consumers to place freezes on their credit info for free, starting on September 21, 2018. New Law Provides Free Security Freezes and Increased Fraud Alert Protection explains that "[o]n May 24, 2018, the President signed Public Law 115-174 into law. Section 301 of Public Law 115-174 amends the Fair Credit Reporting Act, to establish a new federal right for consumers to implement a security freeze of their credit file." (citations omitted).

The legislation establishes standards for the creation, temporary lifting or “thaw,” and permanent removal of security freezes from the nationwide consumer reporting agencies. The security freezes are essentially limited to parties seeking the consumer’s information for credit purposes. The freeze does not apply to parties who seek the report for employment, insurance, or tenant-screening purposes. It also does not apply to existing creditors or their agents or assignees conducting an account review, collecting on a financial obligation owed them, or seeking to extend a “firm offer of credit” (i.e.,prescreening).
 

In addition, the new law preempts state credit freeze laws and expands the length of  fraud alerts from 3 months to a full year!  Further, "[t]he legislation’s preemption extends to any state requirement or prohibition with respect to subject matter regulated by the statute’s provisions relating to security freezes. For example, some state statutes are stronger than the new federal standards by allowing consumers to freeze access to credit reports for employment or insurance purposes." There is also a provision covering when a fiduciary needs to secure a freeze for an individual who is incapacitated.

PS-if you haven't checked your credit reports this year, what are you waiting for?
 

July 12, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, July 11, 2018

How "Liveable" is Your Community?

AARP has named the top 10 cities with populations  500,000 and over that are the most "liveable." I'm not living in one of the top ten-are you? Nor am I living in one of the top 10 mid-sized (100,000-499,999) "liveable" communities. Nope, not living in one of the top 10 small (25,000-99,999) "liveable" communities either. 

How does AARP determine if a community meets their liveability scale?  The website explains that "AARP developed the Livability Index, a ground-breaking tool—now in its third year—that uses more than 50 national data sources and 60 indicators spread across seven categories to jump-start community conversations about livability and encourage action by consumers and policymakers alike.It turns out that many of the characteristics that make a community “livable” are the same across all ages: safety and security, affordable and appropriate housing and transportation, and the ability to live near family and friends who can be relied upon." The index looks at housing, environment, health, community engagement, employment, neighborhoods and transportation. How does your city fare?

BTW, this could be a really good exercise for students to do in their elder law course. The fall semester will be here before we know it!

July 11, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other, Statistics | Permalink | Comments (0)

Tuesday, July 10, 2018

The Right To Visitation for Persons Under Guardianship

We're back!  Hope everyone had a lovely 4th. I wanted to be sure you saw this new fact sheet from the ABA Commission on Law & Aging regarding thee right of visitation for persons under guardianship. The fact sheet, Guardianship and the Right to Visitation, Communication, and Interactionsummarizes state statutes that specifically address the issue of visitation.  Here's the introduction:

Defining the right to visitation, communication, and interaction under guardianship is an important issue in elder and disability rights law. This issue recently gained media attention when the adult children of incapacitated celebrities such as Casey Kasem and Peter Falk petitioned the courts for the right to visit their parents over a guardian’s objections, and then advocated for legislative change. These high-profile visitation cases highlight an unknown but anecdotally frequent number of instances nationally. In addition, as more state legislatures codify protections for the rights of people with guardians, and the public becomes more aware of the potential risks of guardianship—including isolation from friends, family, and community—more states are debating hotly contested visitation bills.

Estrangement from family, friends, and acquaintances can be a precursor and a consequence of guardianship. The factors that led to the appointment of a guardian–mental illness, dementia, poverty, abuse, and exploitation–may have also led to unwanted isolation. Family, friends, and professionals should all be aware of the potentially devastating effects of isolation on the person; loss of ties to friends, family, and social networks can have a negative effect on anyone’s physical and mental health.

Traditionally, a guardian has the power to encourage or limit important relationships and connections. Recently, national standards and state laws have charged guardians with encouraging and supporting visitation in accordance with a person’s values and preferences. Still, a guardian may have to weigh the important benefits of visitation with the need to restrict contact due to family dysfunction, undue influence, neglect, abuse, and/or financial exploitation.

The fact sheet offers 13 FAQ with various state legislative responses. Twenty-two states have addressed the visitation issue in some form, with summaries of those actions provided as part of the FAQ. The fact sheet also summarizes some of the provisions of the new Uniform Guardianship, Conservatorship and Other Protective Arrangements Act that address the issue.

Click here to access the fact sheet.

July 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations | Permalink | Comments (0)

Monday, July 9, 2018

Supported Decision-Making Used to Convince Judge to Terminate Guardianship

The Washington Post reported on the case of an 87 year old woman who convinced a judge to terminate her guardianship in favor of supported decision-making. This 87-year-old D.C. woman just made it easier for you to keep your independence explains that "[t]he octogenarian is the first senior citizen in the District to convince a court to terminate a guardianship placed on her in favor of “supported decision-making.” She and her attorneys successfully argued that with help from people in her life, she could make her own decisions and did not need a court-appointed guardian to do that for her."

Her case marks the first time that the District’s supported decision-making law, which was passed in May, has been cited in court to help a resident regain independence. Most of us have friends or relatives we turn to for advice. This is the same as that — but more. The D.C. law formalizes those relationships and requires institutions and organizations to recognize the role of people who serve in those supportive positions. The District is only the fourth jurisdiction in the country to pass the law, after Texas, Delaware and Wisconsin. (Virginia and Maryland — are you listening?)

The elder acknowledges the need for help for some things and the knowledge of who she calls to get that help.  Her reaction to the ruling?  She's quoted in the article: “It makes you feel powerful to be in charge of your own life,” she said. “You can have a lot of help everywhere, but you are your own boss.” She's realistic, though, recognizing that at some point she may not be able to live independently.

The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA) incorporates supported decision-making. So far Maine has adopted UGCOPAA and a bill has been introduced in New Mexico to adopt it.

Still, she said, she worries about the future, about whether one day she will be told that she can no longer live alone in her apartment.

She knows all too well what many of us, thankfully, have not yet had to learn — the suddenness with which life can change.

July 9, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Not Wild About Robots for Elder Care? How About Becoming Your Own Robot? (I like this idea!)

Recently I was chatting with my always interesting California friend, Jack Cumming.  We were commenting how lately we've been swamped with interesting new topics in aging.  Jack had the best report of all.  

It seems that a senior living community is working with a new company to serve as a testing ground for wearable exoskeltons.  What's that? Remember how Bruce Wayne always had his Bat Suit ready to go in his Bat Cave?   

How might this work?  Watch the video at the "Discover" tab for a company called Seismic, that is developing what it rightly calls (and has trademarked) "powered clothing." 

I suspect my health law colleague Matt Lawrence will like this too!  We can call this a Sci Fi Monday post!  

July 9, 2018 in Consumer Information, Current Affairs, Web/Tech | Permalink | Comments (0)

Friday, June 29, 2018

Hidden Costs for States to Take Over Management of Struggling Care Facilities

A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging.  She is examining what happens when struggling nursing home operations require intervention to protect existing residents.   Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager.  Ms. Brambila begins:

The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.

 

In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.

 

State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.

 

The management fee is paid by fines collected from nursing home facilities.

 

Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.

 

The average cost for managing these troubled homes exceeded $335,000.

There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers.  Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota.  According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.

For the full story, read  "Pennsylvania to pay $475,000 for temporary nursing home manager."  Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.   

June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 28, 2018

New Infographic on Dementia Trends

The Population Reference Bureau (PRB) has  published a new infographic on trends in dementia in the US. The infographic explains

The share of older Americans with dementia is decreasing, but the total number will rise as the large baby boomer population ages and more people live longer. While education gives older adults an edge, reducing their dementia risk, racial and socioeconomic disparities in dementia are large and persistent. The most effective way to reduce dementia prevalence in the future is to postpone its onset through preventive strategies and treatments.

This infographic summarizes the latest demographic research on dementia trends, published in a 2018 special supplement to Journals of Gerontology.[1] It distills key findings from the supplement’s seven articles for policymakers and public health professionals as they plan for an aging population.

The infographic addresses age, education, gaps, costs and prevention. Check it out!

June 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Maine November Ballot Initiative Will Test Mandate for State to Provide Home Care for the Elderly and Disabled

States are certainly embracing their roles as laboratories for change in core policies.  Here's an interesting state ballot initiative to create state-mandated "home care."    

The Maine Secretary of State’s Office released on Monday [June 25] the language of a November ballot initiative that would raise taxes on wealthier Mainers to pay for home care for the elderly and disabled.

 

Secretary of State Matthew Dunlap said in a press release said that the final wording of the question on an act that would establish universal home care for seniors and persons with disabilities was based on feedback from the public, who had until June 15 to offer comments.

 

Dunlap said the initiative proposed by the Maine People’s Alliance will read as follows:
 
 
“Do you want to create the Universal Home Care Program to provide home-based assistance to people with disabilities and senior citizens, regardless of income, funded by a new 3.8 percent tax on individuals and families with Maine wage and adjusted gross income above the amount subject to Social Security taxes, which is $128,400 in 2018?”
 
For more details, including what opposition groups are saying about the initiative, see Here's How Maine's Ballot Question on University Home Care Will Read.

June 28, 2018 in Consumer Information, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Buzz Aldrin Fighting Guardianship

The Washington Post reported on one of the latest famous persons to be embroiled in a guardianship proceeding. Astronaut Buzz Aldrin is fighting attempts by his kids to place him under guardianship. Buzz Aldrin is suing his children. They say they are trying to protect the legendary astronaut.explains that his kids sought to be appointed as guardian. Mr. Aldrin responded by suing them along with his manager, on the basis that "they sought to take advantage of him [and now], the family is embroiled in a rancorous dispute that has spilled from the courts into a public spectacle that both sides say they don’t want." Mr. Aldrin's suit claimed that "they assumed control of his “personal credit cards, bank accounts, trust money, space memorabilia, space artifacts, social media accounts and all elements of the Buzz Aldrin brand.” The suit accuses [one child] of a breach of fiduciary duty." The children quoted in the article offering a contrary view of matters

“Let it be clear that every one of these allegations are products of the increased confusion and memory loss that Dad has demonstrated in recent years,” Andy and Jan Aldrin said.

Their father had started associating with a few people who were “trying to drive a wedge between Dad and the family,” Andy Aldrin said. The siblings said they would not allow “opportunistic agents to grab the spotlight, break our family apart.”

They said they were also concerned about his increasingly lavish lifestyle, which grew to more than $70,000 a month at a time when he stopped accepting paid speaking engagements. His annual salary from the foundation was $36,000.

Mr. Aldrin appeared on ABC  to explain his views of the matter. His interview is available here.  A photo of Mr. Aldrin standing on the moon is available here.

 
 

June 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Wednesday, June 27, 2018

Free Webinar-Financial Exploitation & Medicare Fraud

Mark your calendars for a free webinar on Financial Exploitation and Medicare Fraud. The National Center on Law & Elder Rights will be offering this webinar on Wednesday, July 18, 2018 from 2-3 edt. Here's info about the webinar

Medicare fraud hurts individuals and is harmful to the Medicare Trust Fund. The Medicare Trust fund loses between $60 and $90 billion dollars every year to fraud, waste and abuse. Individuals can lose access to Medicare services because their identity has been misappropriated by someone else. Law and aging advocates play an important role in helping older adults prevent, detect, and report Medicare fraud and abuse.

In this free webinar, Financial Exploitation and Medicare Fraud, California’s Senior Medicare Patrol will teach advocates how to identify potential Medicare scams and report fraud and abuse to the Senior Medicare Patrol. Justice in Aging will highlight potential exploitive Medicare practices and outlines strategies to help prevent exploitation. 

To register, click here

 

 

June 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Webinars | Permalink | Comments (0)

How Far Can Courts Go in Reassigning Income to a Community Spouse When it Affects Medicaid Payments?

It is a while since I've had a chance to report on an interesting Medicaid planning case.  Perhaps that alone is a sign of the times?   

Last month in Michigan, however, an appellate court weighed in on an interesting question about the power of courts to reallocate income, from the institutionalized spouse to the community spouse, where such a decision would impact payment sources for the nursing home. In a per curiam decision, the court considered a pair of similar cases, where the state probate courts had entered protective orders that directed "all income" received by an institutionalized spouse (IS) be paid to the community spouse for maintenance purposes. The State Department of Health and Human Services objected, as clearly the state winds up paying more for the IS's care if the community spouse gets all the IS's income. 

Does the probate court have authority -- jurisdiction? -- to make such a ruling?  What criteria are relevant to the allocation of income?  In other words, is the probate court the right place to avoid inadequate safeguards against impoverishment of the community spouse?  Interestingly, the Court, at footnote 13, distinguished the two cases from past attempts to make gifts or use protective proceedings for planning purposes before an initial determination of Medicaid eligibility.  The court summarized its ultimate decision:  

For the reasons explained in this opinion, we conclude that the probate courts have the authority to enter protective orders providing support for a community spouse whose institutionalized spouse is receiving Medicaid benefits. However, we also conclude that the probate courts’ authority to enter such support orders under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq, does not include the power to enter an order preserving the community spouse’s standard of living without consideration of the institutionalized spouse’s needs and patient-pay obligations under Medicaid. Given that the orders in this case were entered without consideration of Joseph’s and Jerome’s needs and patient-pay obligations under Medicaid, we find that the probate courts abused their discretion by entering the orders at issue in this case. We therefore vacate both support orders and remand for a reconsideration of Beverly’s and Ramona’s need for support under the proper framework.

For more, read the full decision in In re Estate of Vansach, Michigan Court of Appeals, May 22, 2018.

Counsel representing the community spouse has posted his own take on the decision, describing it as a win, in a post titled BRMM Wins Significant Elder Law Case in Michigan Court of Appeals.  

No success in finding a mirror image article from the DHHS lawyers.  With the split decision, I suppose they could have written DHHS Wins Significant Elder Law Case in Michigan Court of Appeals.

June 27, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 26, 2018

More on End of Life

Two more items to add to your resources and reading on end of life in the U.S.

First: The New York Times ran an op-ed earlier in the month, Let Dying People End Their Suffering.Written by Diane Rehm, the  focus of this piece is on California's aid-in-dying law. She writes about a friend with terminal cancer who expressed relief about the law that allowed her to seek aid-in-dying.  As readers of this blog know, the law was overturned, so Ms. Rehm writes about the turmoil the decision has caused for those with terminal illnesses and their families. She writes about her husband, in Maryland, without the option of aid-in-dying, who instead opted for voluntarily refusing food and fluids.

Ms. Rehm makes a heartfelt argument in support of the aid-in-dying law, concluding her article this way

Let me be clear: I understand that many people believe that only God should determine the time of their death, and I support them 100 percent. Others want every additional minute of life that medical science can give them, and I support those people 100 percent. But the end of life is an extremely personal experience. If, when my time comes, I see only unbearable suffering ahead of me, then I want my preference to have access to medical aid in dying to be supported 100 percent, as well.

As Archbishop Desmond Tutu has written, “Regardless of what you might choose for yourself, why should you deny others the right to make this choice?”

Second:

Back in May, the president of the Hastings Center  wrote  a piece, Hastings Center President Calls for “Moral Leadership” to Improve End-of-Life Care.

The president made two lectures, "the 23rd annual Joseph N. Muschel Medical House Staff Award Lecture at Medicine Grand Rounds at Columbia University on May 16 and the Annual Wilhelm S. Albrink Lecture in Bioethics at West Virginia University on May 18... [where she] called on clinicians, hospital leaders, and bioethicists to broaden the usual ethical framework beyond “thin” notions of autonomy to a more robust relational ethics, that would build new systems, better capable of ensuring that frail older Americans and their caregivers get the support they need."

In her talk, when she turned to the topic of end of life "and population aging, she told the audiences: 'Redesigning our systems of health care delivery is one of the most important challenges of our time and will take significant moral leadership. But even that is not enough: beyond changes within care delivery settings, we also need to redesign our communities – so that housing, transportation and social supports are there for the increasing number of Americans living longer with frailty and dementia.'"

I'm sure these two pieces will not be the last on end of life care, so, stay tuned.

June 26, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, June 25, 2018

Age Discrimination Investigation

Our friend and frequent contributor, Naomi Cahn, recently sent us an item about an age discrimination in employment investigation at Intel. Silicon Valley's quieter discrimination fight, published in Axios at the end of last month, offers this quick take "[t]he disclosure that Intel is under investigation for age discrimination highlights what many see as an unspoken truism of the tech industry: it's a young man's game...Why it matters: Over the last year, much has been made of the industry’s maleness. But there’s been less of a spotlight on its preference for youth over experience." The Axios article offers these statistics:

By the numbers:

  • Nearly 20% of those laid off by Intel in 2016 were 60 or over, according to the Oregonian.
  • 7.8% were 55-59.
  • 11.2% were under age 45.
  • 5% were under 35.

Intel isn't alone, as the article notes, other companies have been investigated.  The takeway, according to the article,

Our thought bubble: While much of the age discrimination issue centers around worker bees vs. tech leaders, Silicon Valley also has a love affair with young founders. But as these companies move to the center of our economic and social existence, they need to tap the experience of workers and managers who've built institutions and weathered storms. Otherwise, no matter how smart they are, they'll keep making rookie mistakes.

  • As for the industry's silence on the topic, it's a fair bet that many prefer to keep their head down and pass as younger rather than carry the mantle of being the voice for the older tech worker.

Side note: It's somewhat interesting that Intel finds itself in the crosshairs given that the company has been a leader among big tech firms in trying to diversify its ranks when it comes to race and gender. Intel, for its part, denies it has discriminated based on age or any other basis.

June 25, 2018 in Consumer Information, Current Affairs, Discrimination | Permalink | Comments (0)

G.W. Law Prof Cahn Addresses USSC Ruling on Statutory Insurance Revocation Following Divorce

George Washington Law Professor Naomi Cahn has written a very timely piece considering the Supreme Court's June 11 decision in Sveen v. Melin

For academics, this decision could be relevant to many courses, including estate planning, family law, property law, and contract law, and, of course, constitutional law. Did a state divorce law, potentially effectuating revocation of a former wife as the named beneficiary of her former husband's life insurance policy, conflict with the Contracts Clause of the U.S. Constitution?  The case has drawn attention in part because it offers an "early look" at analysis rendered by President Trump nominee Justice Gorsuch, in his lone dissent.   

Naomi is also interested in the dissent.  She writes in part:

Rather than critique Justice Gorsuch’s interpretation of the Contracts Clause, I want to focus on another aspect of his dissent: he twice (approvingly) cites to a brief filed by more than a dozen women’s groups supporting Kaye Melin (the majority does not mention this issue at all).

 

It is important to acknowledge that, while virtually all states provide for revocation of beneficiary provisions in wills in favor of an ex-spouse, only about half the states (and the Uniform Probate Code) have extended this revocation to nonprobate assets, such as life insurance policies. There is a policy debate among states about whether automatic revocation is a good idea, and Congress does not provide for such automatic revocation in federally regulated nonprobate assets.

 

In addition, there is little empirical evidence concerning what policyholders actually want or expect will happen upon divorce. Indeed—and here is one of the two contexts in which Gorsuch cited the women’s brief—“[a] sizeable (and maybe growing) number of people do want to keep their former spouses as beneficiaries.” The growth of collaborative divorce, for example, shows that divorce is not necessarily the messy, take-no-prisoners assumption that underlies modern divorce revocation statutes. As Justice Gorsuch noted, citing to a brief filed by the U.S. government in a 2013 case that argued a state divorce revocation statute should be preempted, there may well be legitimate reasons why a decedent did not change a beneficiary designation, ranging from wanting to support the ex-spouse’s care for joint children to feelings of connection. Justice Gorsuch cited the Women’s Law Project brief again in addressing alternatives to the state’s choice. . . . 

For Professor Cahn's full analysis, including her interesting conclusion, see Svenn v. Melin: The Retro View of Revocation on Divorce Statutes.  

June 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Friday, June 22, 2018

Where the Elders Are

CityLab recently ran a story about populations and particularly, where elders are residing. Mapping America’s Aging Population explains that "Demographers and geographers have watched as this aging cohort transformed the U.S., from young children in the 1950s and 1960s to senior citizens today. This graying of America has left a distinctive geographical fingerprint."

Want to guess where elders are living?  If you started with the sunbelt you would be somewhat correct. "Unsurprisingly, popular retirement states like Florida and Arizona have high concentrations of older Americans... What may be more of a surprise is the broad swaths of elderly running through the Midwest and the Appalachians. These regions have aged significantly, as many younger residents headed toward the coasts."  The demographic maps provide good pictorial representations of the locations where elders are living.

The article looks at births and deaths and relocation. Interestingly, "[p]eople are less likely to move as they age. In 1968, parents of the baby boomers were in their highly mobile, young adult years, but today boomers are older and more apt to stay where they are."

The Boomers seem to be clustering in certain geographic areas:

Baby boomers have contributed to this trend. Fifty years ago, this group was spread out evenly among the rest of the general population. By 1990, they had became more bicoastal and were concentrated in a small number of dynamic, growing metropolitan areas.

Between 1990 and 2000, a substantial number of boomers flocked from these metro areas to amenity-laden retirement and pre-retirement regions, like the Pacific Northwest, Florida, northern Wisconsin and Michigan, as well as some areas of the South, like the Ozark region and the Western Carolinas.

These areas have continued to grow, while baby boomers moved away in their greatest numbers from the southern Great Plains and the area along the Mississippi River Valley.

Thanks to my colleague and dear friend, Mark Bauer, for sending me the article.

 

 

June 22, 2018 in Consumer Information, Current Affairs, Housing, Other, Property Management, Retirement, Statistics | Permalink | Comments (0)