Tuesday, February 7, 2017
Robert Fleming sent out some info on a listserv about a series of videos his firm has created and placed on You Tube to educate clients about specific substantive areas of law as well as answers to practical questions. That got me thinking about the value of such a service to clients and how you could even have a video on what to expect when you go to your lawyer's office for the first time. I wondered if any of our readers also have videos on You Tube (or on your firm's webpage) along these lines. Let us know?
BTW, the Fleming and Curti videos are just the first batch in a series. If you want to be kept apprised of new videos, you can subscribe to the Fleming and Curti You Tube channel (click on the red subscribe button-mine is on the top right hand of the screen).
Sunday, February 5, 2017
As mentioned in a recent post, the observation status case was headed back to court. The February 2, 2017 opinion resulted in a favorable decision requiring corrective action. The Center for Medicare Advocacy released the following Court Orders Corrective Action Plan for Government's Noncompliance with Settlement in Jimmo v. Burwell explaining that the judge has "ordered the Secretary of Health & Human Services to carry out a Corrective Action Plan to remedy the Department’s noncompliance with the Settlement." What's included in this corrective action plan?
The judge ruled that the Corrective Action Plan will include a new CMS webpage dedicated to Jimmo, a published Corrective Statement disavowing the improvement standard, a posting of Frequently Asked Questions (FAQs), and new training for contractors making coverage decisions. In addition, and significantly, the Court largely adopted the Corrective Statement drafted by plaintiffs, and ordered the Secretary to conduct a new National Call to explain the correct policy.
The opinion is available here. Great job CMA! (in the interest of full disclosure, I'm on the CMA board)
Thursday, February 2, 2017
We've heard that Speaker Ryan has a plan to change Medicare, but that the President had made campaign promises about preserving it. So, have an opinion? Should it remain unchanged? Should it be changed? Here's your chance to make your voice heard. AARP is organizing a "thunderclap" campaign, asking those with an opinion share it with the President by Twitter, Tumblr or Facebook and they will all be posted on the same day, February 21, 2017. The website has more information about the specifics on how this works. Don't want to wait until then to make your opinion known? AARP also has a site for folks to contact Congress that makes it about as simple as can be with a prepared message for those who want Congress to support Medicare . (If you think Medicare should be changed, you may not be able to change the AARP standard message and you will need to email your elected representatives)
Wednesday, February 1, 2017
Several years ago CMS entered into a settlement in litigation that has become known as the Jimmo case. CMS agreed that the improvement standard wasn't in fact a standard for determining further Medicare therapy coverage and all was good, or so it seemed. Yet, now we learn it's not, according to a recent story in Kaiser Health News. Medicare’s Coverage Of Therapy Services Again Is In Center Of Court Dispute explains
Four years after Medicare officials agreed in a landmark court settlement that seniors cannot be denied coverage for physical therapy and other skilled care simply because their condition is not improving, patients are still being turned away.
So federal officials and Medicare advocates have renewed their court battle, acknowledging that they cannot agree on a way to fix the problem. Earlier this month, each submitted ideas to the judge, who will decide — possibly within the next few months — what measures should be taken.
The settlement was supposed to be the end of the matter, and instead of the improvement standard, Medicare was to make the decision as follows, "not ... on the 'potential for improvement from the therapy but rather on the beneficiary’s need for skilled care.'” So in August of last year, the judge ordered the parties to get together to "improve" Medicare's educational initiative for those who deal with the claims and staff hotlines, as well as the ALJs. The parties reached an impasse, so it's back to court.
Tuesday, January 31, 2017
The New York Times ran an article about the use of robots for elders. Seniors Welcome New, Battery-Powered Friends explains retirement communities are among the leaders of testing out new technologies. "Early adopters ... are on the front lines of testing new technologies that some experts say are set to upend a few of the constants of retirement. Eager not to be left behind, retirement communities are increasingly serving as testing grounds that vet winners and losers."
Here is something that I thought particularly interesting regarding technology development pointed out in this article. "Some technologists see the most promise in the social dimensions. For too long, technology has been chasing problems rather than trying to delight human beings, said Joseph Coughlin, director of the AgeLab at the Massachusetts Institute of Technology. “Where are the devices that help us learn and expand our horizons?” he said."
The article explores the advantages of robot companions with some of those designed specifically for neophytes of technology. For example, one company has developed a robot that requires little tech expertise to use, and the robot "is connected to Wi-Fi and operated remotely. In its next iteration, the company is working on training the robot to pick up objects... [The company's] robots will be offered by a consumer health firm ... to retirement communities and people aging in place. The yearly cost is about 20 percent of the cost, on average, of hiring full-time caregivers...." The article explores the role of elders in testing tech products and the value of the feedback that they give.
I love technology "stuff" and can't wait for the next new shiny thing. But, I am concerned if we begin to rely on technology solely as the means of providing caregiving. I can't wait to have my own personal robot, but will it give good hugs?
Monday, January 30, 2017
The Denver Post ran an article recently that some Colorado hospitals are opting out of the new aid-in-dying law. About 30 hospitals opting out of Colorado’s medical aid-in-dying law, Three major health systems have announced they will not participate explains that
Up to 30 Colorado hospitals are opting out of the state’s new medical aid-in-dying law, either fully or in part, but whether that means the doctors they employ are banned from writing life-ending prescriptions is a controversy that could wind up in court.
At this point, terminally ill Coloradans who want to end their lives under the law will need to find out whether their physicians are allowed to participate.
The article explains that whether the ban applies to doctors for those hospitals depends on the hospital. For example, one hospital group has said that the doctors could "talk to their patients about aid in dying and can write life-ending prescriptions in a hospital. But hospital pharmacies will not fill those prescriptions and patients are not allowed to take their own lives in the hospital, which health officials figure is an unlikely request anyway." The proponents of the law take a different view on whether the ban prevents the doctors from writing the prescriptions, but indicate litigation may be needed to decide the matter.
The article explains the provision of the law
The law says a hospital may prohibit an employed or contracted physician from writing a prescription for someone “who intends to use the aid-in-dying medication on the facility’s premises.” It also makes clear that a healthcare provider can choose whether to participate in medical aid in dying and that the provider must transfer the patient’s medical records to a new health care provider if requested.
With the different interpretation of the law, it may be that litigation will be necessary to figure this out. Stay tuned.
Sunday, January 29, 2017
There is a lot of buzz about changes to programs that impact elders and none of us knows what the end results will be. The Leadership Council on Aging Organizations has designated Tuesday (January 31) and Wednesday (February 1) as call your Senators and Representatives days. Here is the information from the American Society on Aging:
The Leadership Council of Aging Organizations (LCAO), of which ASA is a member, is organizing call-in days next Tuesday and Wednesday, January 31 and February 1. This is an opportunity for you to contact your Senators and Representatives to let them know of your concerns about preserving these major programs. To participate, dial 866-426-2631. You’ll hear a brief overview of the issues, and then be asked to enter your zip code to be connected with your legislators.
ASA offers some tips on talking points, available here.
Thursday, January 26, 2017
The Young Invincibles recently released a report that looks at the financial health of the Millennials. The Financial Health of Young America "compares the financial health of young Americans in 1989 compared to today’s young adults to reveal major declines across five key factors – income, assets, net wealth, home ownership and retirement savings. In summary, Boomers had higher incomes, owned more homes, and had twice the net assets that Millennials have today."
In addition, the report notes the following key findings:
Millennials have earned a net wealth half that of Boomers at the same age.
Young adult workers today earn $10,000 less than young adults in 1989, a decline of 20 percent.
Education attainment still an individual’s best pathway to financial security.
When Boomers were young adults, they owned twice the amount of assets as young adults.
Disturbing racial inequality persists and grows. Young African Americans’ median wealth declined by a third since 1989.
Student debt blunts some of education’s benefits.
The report makes various recommendations in the following categories: skills, education, income, employment benefits, housing policies, improving the ability to save and gain wealth, and improve portable retirement choices. This is the first of several reports. The full report runs 30 pages and is available here.
Wednesday, January 25, 2017
The Denver Post ran an AP story a few weeks ago about Americans retiring abroad. Growing number of Americans are retiring outside the U.S. highlights the increase in the number of Americans who decide to retire and live abroad. "The number grew 17 percent between 2010 and 2015 and is expected to increase over the next 10 years as more baby boomers retire... Just under 400,000 American retirees are now living abroad, according to the Social Security Administration. The countries they have chosen most often: Canada, Japan, Mexico, Germany and the United Kingdom." The article references a lower cost of living or cheaper health care as a reason some Americans choose to retire to other countries. Climate may also be a factor. It would be an interesting exercise for students to list the issues and considerations when clients decide to retire to another country. Anyone want to assign this as a project?
Tuesday, January 24, 2017
Financial Security For Middle Class Families.
Forty Percent Of People Who Reach Age 65 Will Need Nursing Home Care.
Peace Of Mind For Middle Class Families.
Millions Of Americans Are Providing Care And Support Today To An Older Adult.
Ensuring Skilled Dementia Care
Essential Protections For Frail Elderly And Their Families
Preserving Life In The Community.
Delirium and dementia are common causes of cognitive impairment in older populations. Although each may occur independently, delirium and dementia frequently coexist. Dementia is a leading risk factor for delirium, and there is an increased incidence of new dementia and cognitive decline after delirium. Delirium can accelerate the rate of cognitive decline, suggesting that an episode of delirium can result in a more rapid progression of dementia symptoms, leading to earlier functional disability, increased caregiver burden, and rising health care costs. As the population ages, there has been a rapid increase in the incidence and prevalence of delirium and dementia. Better understanding of the risk factors, outcomes, and mechanistic associations between these 2 conditions is therefore critical for developing successful prevention and treatment strategies for this increasing problem.
The conclusions and relevance from the article offers this:
CONCLUSIONS AND RELEVANCE Delirium in the presence of the pathologic processes of dementia is associated with accelerated cognitive decline beyond that expected for delirium or the pathologic process itself. These findings suggest that additional unmeasured pathologic processes specifically relate to delirium. Age-related cognitive decline has many contributors, and these findings at the population level support a role for delirium acting independently and multiplicatively to the pathologic processes of classic dementia.
A new one hour documentary, Alzheimer's: Every Minute Counts, is scheduled to begin airing nationally on PBS stations on Wednesday, January 25.
In part, the documentary will focus on research funding issues. Dr. Ruby Tanzi, a Harvard Medical School researcher who appears on the film, explained for NextAvenue's website:
We should be absolutely panicked at the government level. When the Medicare and Medicaid [treatment and care] bill for Alzheimer’s goes from one in five dollars to one in three dollars — that could happen over the next decade with baby boomers getting older — we could single-handedly collapse Medicare and Medicaid with Alzheimer’s disease.
Now, the government [research funding for Alzheimer's] has gone up to about a billion dollars. Which is great, it’s more money. It’s still not the billions of dollars that go to other age-related diseases. I’m glad that cancer and heart disease and AIDS get many billions of dollars, but Alzheimer’s has to get as much or more now given the epidemic and the urgency here with how many cases we’re going to have.
It’s going to crush us. Never mind the social burden on the families. I might add that two-thirds of patients are women. And most caregivers are women. What’s going to happen when so much of our female population is (struck) with this disease? So it’s a huge problem and if we don’t throw a ton of money at it now, it’ll be a disaster.
For more information on the documentary, including links to watch it on-line (free!), see PBS "Alzheimer's: Every Minute Counts." There is an important opportunity here for schools, including law schools, to host an airing of the documentary to promote discussion about strategies.
Sunday, January 22, 2017
University of Illinois Law Professor Richard Kaplan responded to my post last week, that questioned the appropriate age to compel IRA distributions, by providing a more in-depth look at the topic, via his own article, Reforming Taxation of Retirement Income.
His recommendations include simplifying how Social Security retirement benefits are taxed, bifurcating defined contribution plan withdrawals into capital gains and ordinary income components, repealing certain exceptions to the early distribution penalty, reducing the delayed distribution penalty and adjusting the age at which it is triggered, and changing the residential gain exclusion to avoid unanticipated problems with reverse mortgages.
The 2012 Virginia Tax Review article demonstrates that increased life expectancy supports an increase to age 74 (from 71.5) as the trigger for mandatory distributions.
Thanks, Dick! As always, you have important analysis to share.
The National Guardianship Association, NGA, released updated Standards of Practice for Agencies and Programs Providing Guardianship Services. The standards are free and can be downloaded here. Here is some information about the standards taken from an email announcing their release:
NGA's purpose in this document is to provide guidance for programs striving to provide quality guardianship services. While aspirational, the standards convey good business practice that agencies and states should consider adopting into policy or law.
NGA has defined Standards of Practice for the day-to-day provision of guardianship services. Those standards apply to all guardians whether professional guardians, volunteer guardians or family members. This document defines additional NGA standards for acceptable business practice and program design for non-family guardians who are developing or operating agencies or programs providing professional guardianship services.
Friday, January 20, 2017
We blogged previously that D.C.'s mayor signed the physician-aided dying bill that was then sent to Congress. According to a January 9, 2017 article in the Washington Post, Congressman plans to block D.C. law to let terminally ill patients end their lives, "Representative Jason Chaffetz (R-Utah) said ... he’ll use rarely invoked congressional authority to block a new law passed by the D.C. Council to allow doctors to help end the lives of terminally ill patients in the city" by the end of January. The article notes that it's rare for Congress to block a D.C. law. On January 12, 2017 Senator Lankford and Representative Wenstrup (Oklahoma and Ohio respectively) introduced resolutions to block the law.
January 20, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Under long-standing IRS rules, IRAs and similar retirement accounts created with tax deferred income are generally subject to "required minimum distributions" when the account holder reaches age 70 and a half. As the IRS.gov website reminds us:
- You can withdraw more than the minimum required amount.
- Your withdrawals will be included in your taxable income except for any part that was taxed before (your basis) or that can be received tax-free (such as qualified distributions from designated Roth accounts).
As the Wall Street Journal recently reported, as baby boomers are now reaching that magic age of 70 1/2+, there will be huge mandatory transfers of savings, creating taxable income, even if they don't actually need the retirement funds yet.
Boomers hold roughly $10 trillion in tax-deferred savings accounts, according to an estimate by Edward Shane, a managing director at Bank of New York Mellon Corp. Over the next two decades, the number of people age 70 or older is expected to nearly double to 60 million—roughly the population of Italy.
The account holders may not actually "need" the money in their early 70s, an age now often seen as "young" for retirement, and they may still be in high tax brackets, thus cancelling the original reasons for the savings and deferral. The rules were made when average lifespans were shorter.
On average, men and women who turned 65 in 2015 can expect to live a further 19 and 21.5 years respectively, according to the U.S. Social Security Administration’s most recent life-expectancy estimates; those post-65 expectancies are up from 15.4 and 19 years for those who turned 65 in 1985.
....[D]istributions are expected to grow exponentially over the next two decades because of a 1986 change to federal law designed to prevent the loss of tax revenue. Congress said savers who turn 70½ have to start taking withdrawals from tax-deferred savings plans or face a penalty. Specifically, retirees who turn 70½ have until April of the following calendar year to pull roughly 3.65% from their IRA and 401(k) funds, subject to slight differences in the way the funds are treated by the Internal Revenue Service. Then they must withdraw an increasing portion of their assets every year based on IRS formulas. The rules don’t apply to defined-benefit pensions, where retirees get automatic distributions.
There is a 50% penalty for failure to make required minimum withdrawals. And not all retirees are aware of the consequences of failing to make with withdrawals, especially when accounts were created originally by a spouse who is no longer alive or is unable to manage the account personally. From the Wall Street Journal article:
Bronwyn Shone, a financial adviser in Pleasanton, Calif., said many of her clients aren’t aware of their legal obligation to take distributions. “I think some people thought they could let the money grow tax-deferred forever,” she said.
Certainly the federal government wants -- and an argument can certainly be made that it "needs" -- more tax revenues, but if the goal of the permitted deferral is to encourage saving for the the "real" needs of retirement, which can include disability, health care, long-term care, and other "late in aging" needs, is it still realistic to set the mandatory threshold for withdrawals at age 70.5? For example, Donald Trump is just today commencing his "new job" at age 70 and a half, and yet he could be subject to the RMDs for any IRAs. Maybe this is a financial issue that might interest the new Trump Administration?
For more, read Pulling Retirement Cash, but Not by Choice, by WSJ reporters V. Monga and S. Krouse (paywall protected article from 1/16/17).
Thursday, January 19, 2017
The New York Times has a recent article that resonates with me. I am spending my sabbatical time in Arizona in order to be of more help to my sister with our parents who are both in their 90s. Neither my sister or I have children and we sometimes question what will happen with us if we reach our parents' age with similar needs. Here's an excerpt from the piece that gets right to the point:
While the demand for caregivers is growing because of longer life expectancies and more complex medical care, the supply is shrinking, a result of declining marriage rates, smaller family sizes and greater geographic separation. In 2015, there were seven potential family caregivers for every person over 80. By 2030, this ratio is expected to be four-to-one, and by 2050, there will be fewer than three potential caregivers for every older American.
For more, read the thoughtful essay Who Will Care for the Caregivers? by Dr. Dhruv Khullar, a resident physician at Massachusetts General Hospital and Harvard Medical School.
Do you use social media? You aren't alone if you are. Pew Research released a new social media fact sheet that breaks down social media use, with 69% of Americans using social media at some time. But since this is an elderlawprof blog, I know you want to know more--specifically the percentage of older persons using social media. Wait no longer! 34% of those 65 and older used social media as of the time of the survey, with 64% of those age 50-64 using social media. But which social media are older persons using? That 50-64 age group has a significant presence on Facebook, 61%, compared to 36% of those 65 and older. Pinterest and LinkedIn came in close seconds for those 50-64 (24% and 21% respectively). LinkedIn was a distant second for those 65 and over. Another report from Pew breaks out usage by social media platforms.
Wednesday, January 18, 2017
Seton Hall Law School's Center for Health & Pharmaceutical Law & Policy notified us of the inaugural Mid-Atlantic Health Law Works-in-Progress Retreat, which will be held on February 10, 2017, at Seton Hall Law School in Newark, New Jersey, from 9:00-4:30, followed by a reception. The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting.
This year's retreat will consist of in-depth discussions of the following draft papers:
- Julie Agris (Stony Brook), "A Legal Standard to Empower the Delivery of High Quality Patient Care: The 'Professional Judgment' Standard in the HIPAA Privacy Rule"
Commentators: Gaia Bernstein (Seton Hall), Robert Field (Drexel)
- Adam Kolber (Brooklyn), "Supreme Bioethical Bullshit"
Commentators: Stephen Latham (Yale), Kim Mutcherson (Rutgers)
- Craig Konnoth (University of Pennsylvania), "Side Effects"
Commentators: Lewis Grossman (American), Jennifer Herbst (Quinnipiac)
- Gwendolyn Roberts Majette (Cleveland Marshall), "The ACA's New Governing Architecture and Innovative State Delivery System Reform Initiatives in the Age of a New Presidency"
Commentators: John Cogan (Connecticut), Lauren Roth (NYU)
- Govind Persad (Johns Hopkins), "The Law and Ethics of Paying Patients"
Commentators: Christina Ho (Rutgers), John Jacobi (Seton Hall)
- Kristen Underhill (Columbia), "Righting Research Wrongs: Institutional Uses of Alternative Dispute Resolution in Human Subjects Research"
Commentators: Scott Burris (Temple), Carl Coleman (Seton Hall)
Seton Hall Professor Carl Coleman advises the retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the mid-Atlantic area. If you are interested in attending, RSVP to Carl Coleman at mailto:firstname.lastname@example.org by February 3.
Draft papers will be circulated by the last week of January, and all attendees will be expected to have read the papers before the retreat.
Intriguing titles and interesting topics. Our thanks to Carl for alerting us to the opportunity to participate in the discussions.
Tuesday, January 17, 2017
Kaiser Health News ran a story about a project that provides palliative care to individuals who are homeless and terminally ill. Mobile Team Offers Comfort Care To Homeless At Life’s End covers a pilot project in Seattle. "Since January 2014, the pilot project run by Seattle/King County Health Care for Homeless Network and UW Medicine’s Harborview Medical Center has served more than 100 seriously ill men and women in the Seattle area, tracking them down at shelters and drop-in clinics, in tents under bridges and parked cars." The project is funded through 2017 and is designed to avoid unneeded or unwanted care at the end of life while giving people who are homeless input in their care. The care providers arrange for the clients to get medical treatment (through Medicaid or pro bono care), follow up with patients, help patients make decisions and care for them so they don't die alone.
The mobile program has some advantages over other existing programs, such as going to where the patients are located and the providers are "more likely to engage the hardest-to-reach patients, those distrustful of medical care and outsiders...." Although the medical treatment is important, so far, the team is finding that coordination of care is a huge benefit of the mobile program. Mobile palliative care programs do exist worldwide, but aren't prevalent in the U.S. "Worldwide, there are only a few other mobile palliative care programs, all outside the U.S. The closest one in North America is the Palliative Education and Care for the Homeless program — known as PEACH — in Toronto."