“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.
Tuesday, July 17, 2018
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.
Monday, July 16, 2018
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.
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
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:
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
Here's fun news. This week, one-time Arizona State golfer and a favorite pro, JoAnne Carner, shot her age -- 79 -- in the opening round at the U.S. Senior Women's Open tournament in Chicago.
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.
Thursday, July 12, 2018
What Lessons Will Emerge From Arizona Investigation of 92-Year Old Woman Who Shot and Killed Her 72-Year Old Son?
Reading the news of a July 2 shooting was chilling, especially for anyone associated with long-term care or elder care. According to Arizona news reports, Anna Mae Blessing, age 92, explained, "You took my life, so I'm taking yours." She used a handgun, drawing it from the pocket of her robe, to shoot multiple times, killing her 72-year old son.
Ms. Blessing had been living in an apartment, along with her son and his girlfriend; she was reportedly upset about her son's plan to transfer her to an assisted-living facility. The apartment was located in Fountain Hills, east of Scottsdale, Arizona. Ms. Blessing also reportedly attempted, unsuccessfully, to shoot her son's girlfriend, who fought her off, dislodging both the first and a second handgun.
Followup stories reported the sheriff's office had responded at least six times to "domestic" calls at that location during the previous six months.
According to a sheriff office statement, Ms. Blessing is now charged with first degree murder, one count of aggravated assault with a deadly weapon and one count of kidnapping.
On the one hand, it could be tempting to dismiss this story as an isolated, sad, ironic tragedy.
But what I've been seeing is that senior living providers, especially those offering assisted living, are recognizing that something is deeply amiss about an individual's perception that assisted living is so horrible as to warrant this reaction.
Steve Moran who publishes the Senior Housing Forum asks "Why did she have such an aversion to assisted living?" He muses, "This is a fixable problem....." For more of Steve's thoughts read: "The Headline: Woman, 92, Killed Son Who Tried Putting Her in Assisted Living."
In an editorial titled "Assisted Living's Image Problem," Lois Bowers, Senior Editor for McKnight's Senior Living News, writes:
The Blessing case undoubtedly is a complex one, with more probably in play than a simple suggestion of a move to assisted living. But even so, it presents an opportunity for introspection for the senior living industry as well.
I mean, it seems that at least one person thought that assisted living was so terrible that a prison cell was preferable. And yes, this appears to be an extreme case, but it's not the first time that an older adult has resisted moving into a senior living community.
We know that senior living can offer physical and mental health benefits for older adults. So how can the industry improve at allaying their fears and educating them about those benefits?
And what can the industry do to educate the general public about the differences between assisted living communities and skilled nursing centers? More elucidation is needed, as was made obvious by articles in the lay press about the Blessing incident that used “assisted living” and “nursing home” interchangeably, despite a press release from the sheriff's office that specified that Thomas suggested assisted living to his mother (I know; I saw the press release).
We know that assisted living communities are different from SNFs, and we know that both types of facilities have evolved over the years, and yet I see this confusion regularly in the general media. I've seen government officials make this mistake, too.
So what's the solution? Surely, sales professionals educate individual prospects and their family members when they conduct tours and hold special events at their communities. Campaigns such as the American Seniors Housing Association's Where You Live Matters effort undoubtedly help, too, as does the advocacy work by organizations representing senior living operators.
I was in Arizona the day the story broke. I confess, I spent extra time with my arm around my own 92-year old mother that week -- at her home in assisted living.
July 12, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
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.
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
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!
Tuesday, July 10, 2018
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.
Monday, July 9, 2018
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.
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!
Friday, June 29, 2018
We've gone fishing! Becky and I have each decided to take a few official days off from writing our Blog posts. We'll be back the second week of July. In the meantime, Happy 4th of July!
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
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. 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!
Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy in 2012.
Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers. Judge Jane Magnus-Stinson observed, in ruling in favor of Ms. Vaughn, that
The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)
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
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
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.
Tuesday, June 26, 2018
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?”
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.