Monday, December 15, 2014
The Washington Post has had several articles over the last two years, examining records of debt collection effforts and individual cases where "overpayments" are alleged by the Social Security Administration, leading to claims not just against the direct beneficiaries of the benefits, but also against family members. Sometimes the claims are made many years after the alleged payments took place, making it hard for families to understand the basis of the claims or to defend against the claims. In April of 2014, as we summarized here, following protests the SSA announced it was immediately suspending its intercept program -- used to target IRS tax refunds -- for purposes of stale debt collection. As I commented then, it seemed SSA was more concerned about the government's "self help" approach to debt collection, than answering questions about how and why it was seeking refunds from children of the alleged debtors.
Is this a SSA-specific form of "filial support" claims, where children are liable for certain debts of their parents, or are the claims based on a theory of indirect benefit to the children?
George Washington Law Professor Naomi Cahn alerted us to the latest news on renewed debt collection by SSA from the Washington Post. (Thanks, Naomi!) Some of the same families who were granted refunds of intercepts earlier in the year, were once again asked to pay their ancestors' debts. Five of the families have filed a lawsuit to seek answers, and the Post has also asked for an explanation, apparently with less than satisfactory results:
"Asked to explain the about-face, Social Security officials said they would respond only to written questions. Late Friday, four days after The Post provided questions, the agency issued this statement from spokesman Mark Hinkle: 'We are finalizing our review of the Treasury offset program, but cannot discuss specifics due to the pending litigation.' The offset program is Treasury’s effort to collect on debts to Social Security and other agencies by confiscating Americans’ tax refunds."
For more on the controversy, read Marc Fisher's article, "Social Security Continuing to Pursue Claims for Old Debts Against Family Members" from the Washington Post.
Wednesday, December 10, 2014
Earlier this year, Kim Dayton reported in our Blog (here) about the new CARE Act, enacted in Oklahoma as a means to provide better transition from facility-based care to home care for individuals needing support. The CARE Act is a nation-wide project sponsored by AARP and thus I was excited to be invited to participate in an AARP Pennsylvania Family Caregiver Summit, as part of the discussion about introduction and passage of a CARE Act in my state.
The Summit was held yesterday with administrative agency heads, legislators and their staff invited to attend. The turnout was probably a bit affected by the weather reports for the day. (What happened to the predicted Nor'easter, anyway? Not that I'm complaining about winter weather that proves to be milder than predicted!) I found the event very interesting. As so often happens, I ended up being more of a student than a teacher, even while serving as a panelist.
It was quickly clear that virtually everyone in the room had experience with or personal awareness of the challenges of serving as a family caregiver under stress. The room was practically vibrating with stories about how tough it can be to know what to do when you confront the reality that a parent or other aging family member needs significant support. The keynote speaker, Cate Barron, a vice president of the PennLive and Patriot-News media group and by her own admission a take-charge kind of gal, spoke with great candor and humor about the process of realizing that a "diagnosis" of what is wrong did not necessarily provide answers to her mother's need for assistance. We are so pre-programmed to believe that if we can find the right diagnosis of the problem, there must be a "solution" worth pursuing.
The opening presentation by Glenn Fewkes from the AARP National office provided the latest statistics and graphics about aging in the U.S. What I found especially interesting were his graphics about Long-Term Services and Supports (LTSS) for individuals with caregiving needs. It turns out Pennsylvania ranks near the bottom (42nd, according to the most recent statistics) on a national scorecard. evaluating LTSS for affordability and access. That means the state with the fourth "oldest" population has some real challenges ahead.
That is where AARP's CARE Act project comes into play as a first step to improve supports for individuals needing care. As we reported earlier, CARE is an acronym for "Caregiver Advise, Record and Enable" and AARP's model has straight-forward objectives. To me, a key goal in adopting the model CARE Act is to create smoother transitions. This can be facilitated by making sure that hospitals or rehab facilities have clear information about any designated "caregiver," that they give notifice of discharge at least 4 hours in advance, and that they offer practical instruction on any medical tasks that will need to be performed in the home. For example, under the model CARE Act, the instruction shall include:
- a live demonstration of needed "after-care tasks"
- an opportunity for caregiver and patient to ask questions
- answers to the caregiver and patient questions "provided in a culturally competent manner and in accordance with the hospital's requirements to provide language access services under state and federal law."
My own research has shown that family members often cite "access to accurate information" as one of the most important first needs for families responding to caregiving crises. The CARE Act is clearly intended to respond to a critical first window of need -- hospital discharge -- by requiring facilities to give useful information and relevant instruction.
During the Family Caregiver Summit, there were a lot of good questions about the CARE Act, and it was great to have Pennsylvania State Representative Tim Hennessey on the panel. In his role as majority chair of the House Aging and Older Adult Services Committee, it is likely he will be able to provide early analysis and support for the CARE Act in Pennsylvania.
As part of my own preparation for the Summit, I took a closer look at Oklahoma's result with the CARE Act. Title 63 Okla. St. Ann. Sections 3113- 3117 (the statutory provisions created by the April 2014 passage of Senate Bill 1536) became effective on November 1, 2014. The law requires that hospitals "provide each patient or patient's legal guardian with an opportunity to designate one lay caregiver" following admission, and to record the designated caregiver and the caregiver's contact information in the patient's medical record. Such a choice then triggers the hospital to "request the written consent" of the patient or guardian to release medical information to the patient." Only if the patient both designates a lay caregiver AND gives "written" consent is the hospital then obligated to do anything further with respect to discharge planning with the caregiver.
But what happens in Oklahoma when the written consent to share information with the designated caregiver is given?
Monday, December 1, 2014
Who amongst us have not heard of a senior discount? They are ubiquitous in some areas, such as movie tickets or dining out. Here is one program that allows the recipient of a senior discount to donate it to a charity. The NY Times ran a story about this program, Getting a Senior Discount? Here’s How to Give It Away, which allows the recipient of a discount to donate it. The article tells the story of the Boomerang Giving Project which allowed senior moviegoers to pay full price for their movie tickets and to donate their senior discounts to a charity of their choosing.
More information about the Boomerang Giving Project is available on their website. According to the website, "BOOMERANG GIVING is a national movement of Baby Boomers who dare to imagine the impact we can make as a generation if Boomers with the means reinvest some or all of our senior discount savings back into our communities through charities we each choose ourselves..." The project was also the subject of a story on PBS.
The Boomerang Giving website provides some history on the project. Originating in Washington state, "seven community leaders from Bainbridge Island and Seattle Washington, all dedicated to bolstering future generations through support of nonprofit organizations" created the project with the mission "[t]o redefine Baby Boomers as the generation that gives back. By inventing multiple ways to give back, Boomerang Giving is committed to creating opportunities for the 3.5 million persons who turn 65 each year to increase their charitable giving and join others in supporting their communities."
Returning to the NY Times article, the story notes the upward trend in charitable giving and the benefits of doing so. The obvious, of course, is the help to the charity, but as well, the donor benefits
- "A crucial conclusion from a study published last year in the International Journal of Happiness and Development ... concluded that people feel good when they make a charitable donation — especially through a friend, relative or social connection."
"Harvard researchers found in an experiment that donating to charity can increase physical strength. .. " and
"An increasingly popular way for retirees to stay active mentally and socially is to join a local giving circle."
The article also offers some advice on checking out a charity's legitimacy before committing to a financial contribution and basic charitable planning.
Thursday, November 20, 2014
The Institute of Medicine (IOM) has released a great graphic on palliative care. What Should You Know About Palliative Care? has six graphics on topics including scope, function, location, family services and the benefits of palliative care. The infographic can be downloaded or a poster can be ordered by sending an email. The webpage also includes a link to the IOM report, Dying In America
If you recognize the quoted language from the title above, you can imagine me humming the lyrics to "Silver Bells" as I type. Perhaps we should add a new refrain. As detailed in the Los Angeles Times piece on "Residents Celebrate the 100th Repaired Sidewalk in South L.A. District," safe sidewalks are important to everyone, but particularly to people who have mobility issues, including some older adults. In the article, a stretch of deteriorated sidewalk outside an 84 year old woman's home prevented her for using her walker to get around her neighborhood. The challenge of accomplishing something as seemingly simple as this infrastructure issue, is demonstrated by the statistics in the article, showing there are 11,000 miles of sidewalks in L.A., and an estimated 40% are in need of repair.
The question of how to pay for sidewalk repairs is significant for cities. In Los Angeles, for example, policies on sidewalks can conflict with developers' preference for streets lined with trees. Tree roots are often the cause of sidewalk damage. For a number of years in the 70s, the city offered free repairs for sidewalks damaged by tree roots. But as budgets tightened, public funding was withdrawn, and subsequent efforts to create alternative funding for sidewalk repairs have been controversial.
In my own small community, there is an ordinance that permits the governing body to mark sidewalks in need of repair with a big X (and for some reason they do so with pink paint), and the home or business owner has a fixed amount of time to make the repairs, or be subject to public repairs at a potentially higher price. Obviously this approach won't work in every community -- and it is probably less than cost effective unless adjacent property owners work together to save money on contractors.
By the way, while humming along on this topic, I discovered that there is a relevant, highly placed, law review article -- mostly dealing with sidewalk safety in winter weather -- published in 1897 in Yale's legal journal. See "The Law of Icy Sidewalks in New York State," 6 Yale L. J. 258. In this article I learned the interesting historical fact, that at least in some jurisdictions of the day, "it is not negligence for a person to walk upon an icy sidewalk without rubbers."
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
Sunday, November 16, 2014
In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. As the author, Maine elder law attorney Sally Wagley, explains,
"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."
Has the law been useful in Maine? Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect. She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."
For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."
Saturday, November 15, 2014
Consumer Voice has honored NSCLC Attorney Eric Carlson with its Toby S. Edelman Legal Justice Award. The Toby S. Edelman Legal Justice Award recognizes individuals who go to extraordinary lengths to achieve justice for long-term care customers. Eric received the award for his commitment to advocating for the rights of long-term care consumers, and for his deep expertise in the issues surrounding long-term care. Eric will receive the award at Consumer Voice’s 38th Annual Conference at the Hilton Crystal City in Arlington, Virginia on Sunday, November 16.
Please join us in congratulating him!
Thursday, November 6, 2014
Dr. Louise Aronson, a clinical professor in Geriatrics at University of California San Francisco, wrote a great piece in the New York Times recently, calling for a "silver" standard for architecture and design, to better meet the needs of older adults in public and private accommodations, while also making life easier and safer for everyone. She explains:
"I unloaded the walker and led my 82-year-old father through the sliding glass doors. Inside, there was a single bench made of recycled materials. I noticed it didn’t have the arm supports that a frail elderly person requires to safely sit down and get back up. It was a long trek to the right clinic and I was double-parked outside. Helping my father onto the bench, I said, “Wait here,” and hoped he would remember to do so long enough for me to park and return.
He nodded. We were used to this. It happened almost everywhere we went: at restaurants, the bank, the airport, department stores. Many of these places — our historic city hall, with its wide steps and renovated dome, the futuristic movie theater and the new clinic — were gorgeous.
The problem was that not one of them was set up to facilitate access by someone like my father."
The irony was that the medical center building Dr. Aronson was writing about was brand new and renowned for its "green" design. Nonetheless, it was failing to meet the practical needs of its many silver-haired clients.
For more on how a revolution -- and incentives -- are needed to better meet the needs of an aging world, see "New Buildings for Older People."
Monday, November 3, 2014
While I was in California last summer, a friend introduced me to Lillian Hyatt. I had already known of her by reputation and it was a real pleasure to speak to her in person and to continue our communications by telephone and mail. She's a dynamo, a person who does not take aging "lying down." Born in 1925 (believe me, she doesn't mind me disclosing that fact!), Lillian Hyatt is just about as active in "retirement" as she was during her many years as a writer, consultant, advocate, social worker, and university professor.
So I was especially interested to notice that when I clicked on a hyperlink embedded in a recent New York Times article about the impact of "falling" in an "aging nation," it took me to a press release about Lillian Hyatt. Back in 2008, Ms. Hyatt filed suit against a California Continuing Care Retirement Community (CCRC), to prevent it from banning walkers from the dining room of this high-end retirement community. She needed the walker to maneuver in what was, in essence, her home.
The lawsuit, asserting violation of the federal Fair Housing Act and other state and federal laws that address discrimination based on disability, was settled in 2010. Others have pursued similar claims in assisted living settings, public spaces and more. For more on the continuing impact of Ms. Hyatt's advocacy -- even though, curiously, she is never mentioned by name in the NYT article -- read "Bracing for the Falls of an Aging Nation." Advocates such as Ms. Hyatt challenge all of us to work harder to find a better balance between protection and respect for independence.
Friday, October 31, 2014
ElderLawGuy Jeff Marshall has an interesting blog post, inspired by a recent visit to his doctor where he was asked whether he wanted a "high dose" flu shot. He hadn't heard of high-dose shots. He demonstrates the same careful approach to this personal decision -- lots of research! -- that he uses with legal analysis for his clients.
But, along the same line, I wonder whether we should be asking related questions of long-term care workers and agencies. In Arizona, where my parents (both age 89) live, I learned that many home-care agencies (at least those not "Medicare-Certified") do not provide their employees with such vaccinations, and indeed such workers are often treated by their agencies as independent contractors, so they may be without employer-sponsored health insurance coverage. Such workers struggle to make ends meet -- and flu shots can seem like a luxury. But those same workers probably need to be immunized to better protect their clients. It may be up to the seniors themselves to be aware of this issue, and to pay for and make arrangements for their aides to get flu shots (of any strength).
What are the rules and practices in your state for immunization of in-home care-providers for the elderly?
I often struggle with how far to go in asking for government regulation of risk-factors; but at a minimum, it seems like families need to make their own cost-benefit analysis on immunization of home-aides.
Wednesday, October 29, 2014
LeadingAge is an organization representing "nonprofit" long-term care providers, including operators of CCRCs, home health agencies, day-care centers, nursing homes, Section 8 public housing, and similar companies. During the recent national meeting of LeadingAge in Nashville, one topic was an "alarming trend" in the growth of the for-profit long-term care sector. As reported in McKnight's, during the conference LeadingAge Chairman David Gehm warned the audience that the for-profit sector is "growing nearly eight times as fast as the nonprofoit sector ... citing figures from investment bank Ziegler." Gehm is reported as pointing to reduced access to affordable capital as as one factor contributing to the pressures on the nonprofit industry. He argued a "vibrant nonprofit long-term care sector benefits the whole country."
On the consumer-cost side of the equation, it does seem that what was once a price differential between the two sectors for cost of care is narrowing. Nonetheless, historically there has been a certain additional trustw0rthiness factor associated with monprofit providers that often gave them an edge in the marketplace. But is that still true?
As my students in my Nonprofit Organizations class come to realize, there is often a difference between "charitable" care and "nonprofit" care. But is the difference between nonprofit care and for-profit care becoming harder to evaluate?
Tuesday, October 21, 2014
A continuing care operator is fighting a recent ruling by Alberta’s information czar that would reveal how hundreds of millions in taxpayer dollars are spent each year at the province’s nursing homes and supportive living facilities. A continuing care operator is fighting a recent ruling by Alberta’s information czar that would reveal how hundreds of millions in taxpayer dollars are spent each year at the province’s nursing homes and supportive living facilities. Shepherd’s Care Foundation is asking the courts to overturn a decision by the Office of the Information and Privacy Commissioner ordering the release of the complete annual financial returns it and other operators file with Alberta’s health authority. In a notice seeking judicial review, the Edmonton-based organization says making the returns public under the province’s freedom of information legislation would cause significant harm to its business and labour relations interests. Filed as a condition of the facility’s contract with Alberta Health Services, the returns show the amounts a facility derives each year from the public purse and from resident fees. The document also details how much of that money is spent on care, food and administration and whether any surplus or profit is left over at the end of 12 months. The OIPC ruling stems from requests filed with AHS by the Alberta Union of Provincial Employees several years ago for the returns of 15 continuing care operators with which it was involved in collective bargaining on behalf of workers.
Monday, October 20, 2014
Earlier this month, CMS announced that it was going to update and improve the Nursing Home Compare site, which should result in more accurate information available for consumers. According to the October 6, 2014 press release, "the expansion and strengthening of the agency’s widely-used Five Star Quality Rating System for Nursing Homes will improve consumer information about individual nursing homes’ quality."
Starting in January, "CMS and states will implement focused survey inspections nationwide for a sample of nursing homes to enable better verification of both the staffing and quality measure information that is part of the Five-Star Quality Rating System." CMS is also adding to the quality measures used. Also CMS will be doing some "focused survey inspections" for verification purposes of the information that is being submitted.
According to the Center for Medicare Advocacy October 16, 2014 weekly alert, a new law, "[t]he Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act of 2014) ... supports one of the key changes –providing funding to implement a provision of the Affordable Care Act (ACA) that requires nursing home staffing data reported on Nursing Home Compare to be electronically-submitted and "based on payroll and other verifiable and auditable data."
Check it out!
Thursday, October 16, 2014
Planning for the 2015 White House Conference on Aging (WHCOA) is in full swing. The website has been launched and there is also a WHCOA blog available. You can also sign up for email updates to stay in the loop on WHCOA developments.
Monday, October 6, 2014
Remember as little kids our parents taught us that sharing was a good thing? Sharing has its benefits, as we all know, and I'm sure we have all talked about shared housing in our classes. One of the hottest trends right now is car sharing.
There is an organization that is devoted to shareablity. The website, Shareable "is an award-winning nonprofit news, action and connection hub for the sharing transformation. What’s the sharing transformation? It’s a movement of movements emerging from the grassroots up to solve today’s biggest challenges, which old, top-down institutions are failing to address."
It appears that Seoul, South Korea has taken sharing to an entirely new dimension as they are the "sharing city." Sharing City Seoul: A Model for the World reports on Seoul's Sharing City initiative, started in 2012. The story Is Seoul the Next Great Sharing City? explains that city leaders determined to position "it... to be a model city for sharing. A new, city-funded project called Sharing City, Seoul aims to bring the sharing economy to all Seoul citizens by expanding sharing infrastructure, promoting existing sharing enterprises, incubating sharing economy startups, utilizing idle public resources, and providing more access to data and digital works." The laudable goals of becoming the model sharing city include "to create jobs and increase incomes, address environmental issues, reduce unnecessary consumption and waste, and recover trust-based relationships between people."
How does this connect to elder law? The Next Great Sharing story explains that part of the sharing initiative includes shared housing, "connecting senior citizens who have extra rooms with students who need a room." There is also information about shared meals and other initiatives. Think how the sharing model could help eliminate isolation amongst elders!
Is it working? The Model story from June of 2014 provides an update: Housing and Inter-generational Connection: To address the housing crisis and reduce the social isolation of seniors, a program was created to match young people with idle rooms in seniors’ houses. There have been 28 matches to date."
Thanks to my dear friend and colleague, Professor Mark Bauer, for sharing the article with me.
Thursday, September 25, 2014
Families for Better Care recently released a report card to grade states on nursing homes. Check it out to see if your state gets a passing grade! Families for Better Care is a Florida-based "non-profit citizens advocacy group" devoted to "creating public awareness of the conditions in our nation’s nursing homes and other long-term care settings and developing effective solutions for improving quality of life and care."
Their Nursing Home Report Cards is a "project that analyzes, compares and ranks state’s nursing home quality." The website allows a user to look at overall grades for states in various categories as well look at a specific ranking for a state that includes key findings, grade and rank for 2014 compared to 2013. There is also an interactive map that allows the user to quickly look at a state's "grade." The website also includes a list of the top states and the worst states.
Check it out.
Wednesday, September 24, 2014
We have blogged on several occasions about the issues surrounding caregiving, including the need for caregivers, who provides care, etc. Ever wonder what caregiving costs the caregiver? If I said $5,000 per year, would you say that was more than you thought, or less? What if I told you almost 30% of caregivers spend $10,000 or more? Surprised?
Caring ran a story on the costs of caregiving based on a report they recently compiled. Nearly Half of Family Caregivers Spend Over $5,000 Per Year on Caregiving Costs reports that nearly 50% of the "family caregivers spend more than $5,000 per year on caregiving expenses" (the study considers a family caregiver to be "someone who takes care of a family member or friend, but is unpaid for ... services.... [and] caregiving expenses include out-of-pocket costs for medications, medical bills, in-home care, nursing homes and more." What are the breakdowns for this group of caregivers? "16% spend from $5,000 to $9,999 * 11% spend from $10,000 to $19,999 * 7% spend $20,000 to $29,999 * 5% spend $30,000 to $49,999 * 7% spend $50,000 or more each year." The report includes some other interesting statistics and includes this interesting observation
Caregiving not only has an effect on finances, but it can also impact current employment and future retirement plans, too. One-third of family caregivers (33%) spend more than 30 hours per week on caregiving, making it almost the equivalent of a full-time job. Half of caregivers have made changes to their work schedule to accommodate caregiving, while 30% often arrived late or left early and 17% missed a significant amount of work.
More details about the report and the cost of caregiving are available here
Sunday, September 21, 2014
Seems like there have been several interesting developments in the past few weeks regarding end of life decision making. Thanks again to Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging. former NAELA president, national expert on end of life issues and all around great guy, for sending me an email about the series run on WNYC public radio. The station ran a 3 part series on "death beds" The first, Death Beds: Terminally Ill, But Constantly Hospitalized aired on September 8, 2014. The second, Death Beds: Too Little, Too Late for Many New Yorkers Seeking Hospice aired the next day, and the third, Death Beds: Living Wills Slowly Take Root aired on September 10, 2014.
Each includes the audio recording as well as the print story. Worth a listen!
Wednesday, September 17, 2014
(Thanks to Judy Stein, Executive Director for the Center for Medicare Advocacy (CMA) for sharing this).