Monday, January 11, 2016
Our good friend and elder law guru, Professor Dick Kaplan from Illinois has released a new article, Reflections on Medicare at 50: Breaking the Chains of Path Dependency for a New Era. (In my opinion, anything Dick Kaplan writes is a must-read). The article is available for download on SSRN here. The abstract explains more:
On the occasion of Medicare’s 50th anniversary, this Article examines the evolution of this essential program from its enactment in 1965 through implementation of the Affordable Care Act. Persons who are, or soon will be, newly enrolled in Medicare may be especially interested in the first part of this Article, which addresses the coverages, exclusions, and costs of Medicare’s constituent parts and concludes (on pp. 20-21) with seven critical questions that every new beneficiary must consider before enrolling. The Article then proffers policy recommendations to better align Medicare with current models of health insurance and provide more appropriate coverage of long-term care expenses.
Thursday, January 7, 2016
NPR ran an interesting story on December 22, 2015 on how our internal clocks may begin to lose time, but we have backup clocks ready to start ticking! As Aging Brain's Internal Clock Fades, A New Timekeeper May Kick In notes that
We all have a set of so-called clock genes that keep us on a 24-hour cycle. In the morning they wind us up, and at night they help us wind down. A study out Monday in Proceedings of the National Academy of Sciences found that those genes might beat to a different rhythm in older folks.
One of the authors of the study refers to the genes as the conductors of a person's orchestra and somehow for elders, "[t]heir orchestras seem to go off the beat, but it isn't known why." Before worrying about being "out of tune", take heart that the study found that elders have a back-up clock that starts keeping time when the main internal clock begins to get out of tune. The researchers are particularly interested in how this affects individuals who sundown because of dementia. The NPR story includes an audio version of the story in addition to the print version.
Wednesday, January 6, 2016
SI 01130.740 Achieving a Better Life Experience (ABLE) Accounts was released December 18, 2015. The POMS has six sections, including an explanation of ABLE accounts, definitions, what is excluded, what is countable, and verification/documentation of the account balances and of the distributions. Check it out! Oh and by the way, it's a good time to explain the POMS to your students. Check out SSA's explanation of the POMS on the POMS home page here.
Runner's World magazine ran the story, Outrunning the Demons on December 15, 2015. We all know about sundowning. But have you ever heard it described so eloquently:
I could hear their screeching howls through the canopy of oak and red maple trees that enshroud Lower Road in Brewster, Massachusetts, on the Lower Cape. They were gaining, ready to pounce—I had to sprint to avoid capture at sundown. I felt them closing in as the spring afternoon gave way to dusk and a spectral fog crept over me, first in misty sprays that tingled, then in thick blankets that rose slowly from the base of my neck to my forehead, penetrating my mind and disorienting my senses. Alone, I was soon enveloped in fear and paranoia.
The demons kept advancing as the blazing red sun sank into Cape Cod Bay, doused like a candle. Faster and faster they chased, and faster and faster I ran. I was 61 that day, two years into my diagnosis, and with every ounce of my will, I made it home. But I knew the demons would be back—with a vengeance. My life, once a distance run, has become a race for survival. That’s the way it is with early onset Alzheimer’s. It’s like a death in slow motion, like having a sliver of your brain shaved every day. Alzheimer’s stole my maternal grandfather, my mother, and my paternal uncle. Now, at age 65, it’s coming for me.
This personalized account of one man's fight to hold on in face of a relentless disease is a compelling read. Photos of the author accompany the story. The author, Greg O'Brien, wrote On Pluto: Inside the Mind of Alzheimer's. Read the article. It's worth it.
When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law. Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys. One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly." C.R.S.A. Section 6-1-112 provides that:
"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."
In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.
Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law.
Tuesday, January 5, 2016
Over the holidays in December, I spent time with family in a hospital, responding to an emergency health situation. One of the staff told me it is "always" busier at the holidays, and she attributed this to family members gathering together and "realizing" that a loved one's health was declining. However, there may be more to it than that. Former New York Administrative Law Judge Karen Miller shared a very interesting Wall Street Journal article reporting on the trends in deaths at the holidays. While some of the information is, perhaps, expected, as you think about stress and weather contributing to health risks, the spike in deaths in early 2015 was unusual, when "nearly a third more senior citizens died than normal in the first two weeks of the new year." For more data, read "Why Death Doesn't Take a Holiday This Time of Year."
Thankfully, in our family we weren't dealing with a death! Thanks for sharing this article, Karen.
Monday, January 4, 2016
The year 2050 is right around the corner, and yet it is hard to imagine the sweeping changes the world will confront by then. In a multimedia series, The Wall Street Journal helps readers envision how we will work, how we will age and how we will live.
Graying Japan Tries to Embrace the Golden Years, an article focusing on Japan, is accompanied by 360 video as well as the ability to watch in virtual reality. Examining trends and past history of demographics leads some in Japan to be pessimistic about the graying of the population, while others take a different view,
Pessimists say the only way to keep Japan from inexorably drifting into bankruptcy is radical change, like a sudden, sharp influx of immigrants—an unlikely prospect given Japan’s history as one of the world’s most homogeneous cultures.
But a growing number of Japanese executives, policy makers and academics challenge that proposition. They are exploring whether modest adaptations can ease the woes of an aging society, or even turn the burdens into benefits… start[ing] with steering the growing number of healthy 60- and 70-year-olds from retirement into work… point[ing] to new aging-related growth engines, including an automation spending boom to stretch Japan’s declining labor force, and a growing “silver market” of elderly consumers drawing down savings from a lifetime of hard work and thrift….
The article discusses the ups and downs of an elder workforce and the potential of technologies to help workers. It also covers how the increasing aging population impacts the consumer goods market. It's a fascinating read and I think it would be useful to assign to students.
The New York Times on December 18, 2015 ran an article about LTC insurance. Long-Term Care Insurance Can Baffle, With Complex Policies and Costs opens with this compelling statement: "[insuring] for long-term care is a lot like trying to cover the future financial impact of climate change. It’s a universal problem that looms large, is hard to predict and will be costly to mitigate." The article provides a critical look at the need for long term care insurance and the hurdles that are faced by those considering the need for long term care.
[I]t is a notoriously confusing and not always reliable product. That’s why few people turn to such insurance. Some 70 percent of those over age 65 will require some form of long-term care before they die, but only about 20 percent own a policy.
Instead, millions of those who end up needing long-term care pay for it out of pocket or, after impoverishing themselves, turn to the government for support.
The article takes a look at the costs of the policies, when coverage kicks in, and the limitations of such insurance. The article offers some suggestions for those considering such a policy and concludes with some food for thought:
As if these questions weren’t difficult enough, there are also estate planning considerations. You may want to leave something to your heirs and not want to see your estate consumed by long-term care expenses in your final years.
For those in such situations, experts advise consulting an elder law attorney and fee-only financial planner who doesn’t make money from recommending the policies. That’s the best way to receive an objective — and nuanced — evaluation on whether this product makes sense for you.
Friday, January 1, 2016
While flying across the country and marveling that I can work on Blog entries from 32,000 feet in the air, I came across a nice jewel about time -- and perfectionism -- to start the new year. The essay, "Right Now," is by Kristin Carpenter, an equestrian who blogs for The Chronicle of the Horse magazine. She is writing from Sri Lanka, where memories of the tragic 2004 tsunami encourage her introspection about past, present and future and ... a role for realism in goal-setting.
Thursday, December 31, 2015
An article in the most recent issue of the ABA Commission on Law & Aging, BIFOCAL focuses on instructional directives. In light of CMS reimbursing doctors for end of life discussions with patients, author Susan P. Shapiro, in The Living Will as Improvisation, suggests "it is appropriate to reflect on the legacy of advance directives and ask how physicians might best serve their patients as they anticipate life’s end."
The author notes that
Although the value of proxy directives, which designate a medical decision maker in the event that a person loses capacity in the future, has been repeatedly demonstrated, that of instructional directives or so-called living wills, which state treatment preferences, has not. A new report by the Institute of Medicine concludes that legal approaches embodied in living wills have “been disappointingly ineffective in improving the care people nearing the end of life receive and in ensuring that this care accords with their informed preferences .... (citations omitted).
However, the author discusses the lack of hard data makes it difficult to determine whether living wills have little usefulness these days. The author turns to her own research, explaining that for 3 years she and hospital social worker
observed medical decision making on behalf of patients without decision-making capacity, day after day, from admission to discharge. Daily observations over the course of each patient’s ICU stay tracked when anyone asked about or referred to an advance directive, how the directive was used, and the correspondence between the patient’s treatment preferences articulated in the directive and the host of decisions made on their behalf....
The article discusses her findings regarding the role of advance directives in these cases . It's quite illuminating, especially the discussion about the correlation (or lack thereof) between the directive's existence and how decisions are made. The author suggests there are significant differences between making the directive when all is well and using the directive when all is not. The author concludes the article with this thought: "[a] truly directive living will is not a script, but rather an evolving, ongoing dialogue throughout the life course with those who may someday be called to improvise on our behalf. Let’s hope that Medicare dollars are used to help enrich the conversation."
Wednesday, December 30, 2015
I was reading recently about microaggressions and was interested in this article in Huffington Post/ Post 50 on microaggressions as it pertains to elders. 10 Microaggressions Older People Will Recognize Immediately explains that microaggressions are "the small everyday slights (intended or otherwise) that harbor an underlying attitude of racism, sexism or homophobia -- have been making the rounds of college campuses and workplaces." The article explains that microaggressions also occur against elders and need to be included in the national discussion. The article provides 10 examples of microaggressions, including tone of voice, unflattering language and commercials, jokes about elders' lack of technology skills, and professionals talking to the child instead of the elder.
Having students list examples of such microaggressions could be an interesting exercise for a discussion about ageism.
Tuesday, December 29, 2015
An article in the Washington Post shortly before Christmas had me shaking my head at the cluelessness of some employees of nursing homes regarding resident privacy. Nursing home workers have been posting abusive photos of elderly on social media gave me one of those "you have got to be kidding me moments." Maybe it's an age-gap thing, but I just can't fathom why it would be appropriate to post intimate photos of individuals with whose care one is entrusted. The article indicates that this is not a geographically isolated problem:
Nursing home workers across the country are posting embarrassing and dehumanizing photos of elderly residents on social media networks such as Snapchat, violating their privacy, dignity and, sometimes, the law.
ProPublica has identified 35 instances since 2012 in which workers at nursing homes and assisted-living centers have surreptitiously shared photos or videos of residents, some of whom were partially or completely naked. At least 16 cases involved Snapchat, a social media service in which photos appear for a few seconds and then disappear with no lasting record.
The article offers some illustrations of these photos and the remedies available against the perpetrators. The article also notes that not only are those photos invading resident privacy, they serve as evidence of the violations.
The incidents illustrate the emerging threat that social media poses to patient privacy and, at the same time, its powerful potential for capturing transgressions that previously might have gone unrecorded. Abusive treatment is not new at nursing homes. Workers have been accused of sexually assaulting residents, sedating them with antipsychotic drugs and failing to change urine-soaked bedsheets. But the posting of explicit photos is a new type of mistreatment — one that sometimes leaves its own digital trail.
How often is this violation of resident privacy occurring? The article notes that "ProPublica identified incidents by searching government inspection reports, court cases and media reports. [A district attorney in Massachusetts] said she suspects such incidents are underreported, in part because many of the victims have dementia and do not realize what has happened." So far HHS' Office of Civil Rights hasn't sanctioned any nursing homes "for violations involving social media or issued any recommendations to health providers on the topic." The article notes that CMS, in the process of revising the regs dealing with nursing homes, plans to deal with the issue when revising the definitions of various types of elder abuse. Even one of the social media sites referenced in the article expressed concern about the actions of those nursing home employees.
The article summarizes some cases where charges have been filed. Read the story and assign it to your students.
December 29, 2015 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Other | Permalink | Comments (0)
Monday, December 28, 2015
It's about an elder whose family can't make it home for Christmas and what he does to gather his family. You can watch it here. https://www.youtube.com/watch?v=V6-0kYhqoRo
The Washington Post ran a story about it. This heartbreaking holiday ad is a powerful reminder of old people’s loneliness.
What do you think of the ad?
Sad news about manipulation by attorneys of older clients, and about specific individuals who have been sanctioned recently for their abuse:
- Florida Supreme Court "permanently disbarred" Cape Coral Florida attorney William Edy for theft from his clients. Before being charged with second degree grant theft from clients, Edy apparently held himself out as a trustworthy elder law attorney, writing a newspaper column and even commenting on financial abuse of the elderly.
- New Jersey Supreme Court suspended New Jersey attorney William Torre for one year, while sanctioning his conduct in "borrowing" money from a "vulnerable" 86 year old client, acting in his own self-interest and failing to repay her in a timely and appropriate manner.
The New Jersey court, writing unanimously, observed:
The Court considers respondent’s conduct against the backdrop of the serious and growing problem of elder abuse. As the population ages, and more people suffer health problems, it is not uncommon for family members to seek the appointment of a guardian to oversee the finances of an incapacitated loved one. Others, like M.D., turn to family or professionals for help and execute powers of attorney in favor of a relative, friend, or trusted lawyer. In those situations, the vast majority of attorneys perform honorably and act in a manner consistent with the highest ethical standards. But regrettably, as more seniors have needed help to manage their affairs, allegations of physical and financial abuse have also increased.
In a News-Press article about the Florida disbarment, Professor Geoffrey Hazard (Emeritus at Penn Law, Southern California Law and Yale Law) is quoted as noting that places with large numbers of retirees, such as Southern California, Florida and Arizona, have a "greater risk of attorney misbehavior," in part because of isolation from children and friends with whom they can discuss situations.
Along the same lines of financial misconduct by "professionals," a Texas psychiatrist, Dr. Robert Hadley Gross, was recently sentenced to "nearly six years in prison" for submitting false claims for services to residents at a nursing home, individuals who were shown to be either dead or discharged.
Thursday, December 24, 2015
Tech gifts are always a popular gift for the holidays, but how much use do they get? Perhaps it depends to some extent on the age of the recipient, at least for those gifts that require online access. Pew Research Center recently issued a report that looks at frequency of online access. One-fifth of Americans report going online ‘almost constantly’ reports on the frequency of online access by age group, as well as by education and income. I am sure all of us are online a lot (you have to be online to read this post). How did we manage before the internet? (that's tongue in cheek if you were wondering). "Younger adults are in the vanguard of the constantly connected: Fully 36% of 18- to 29-year-olds go online almost constantly and 50% go online multiple times per day. By comparison, just 6% of those 65 and older go online almost constantly (and just 24% go online multiple times per day)."
How many devices do you have? Odds are, more than one. Another Pew report from November noted that "66% of Americans own at least two digital devices – smartphone, desktop or laptop computer, or tablet – and 36% own all three." Smartphone, computer or tablet? 36% of Americans own all three.
Want suggestions on what tech gifts to get (or give)? Check out AARP's The Ultimate Guide to Tech @50+ which provides information about 32 different tech gifts in 10 categories, ranging from health to money management.
Wednesday, December 23, 2015
While riding on "The Tube" in London recently, I noticed this sign:
In case the text in the photo is a little blurry or too small for you, here's what it says:
No one should have no one at Christmas
No one to hang the tinsel with. Or mistletoe for that matter. No one to share a sherry, a gift or cracker. No one to say Happy Christmas to. Or bring you mince pies in bed. No one to make one day any different from the rest. No one, but no one, should have no one at Christmas.
The sign was sponsored by Age UK, and the final line is an encouragement to reach out to someone "older" who is lonely. Good words for any time of the year....
Although there is no season for scammers-it's a year round problem. But with the holidays there are specific scams that pop up. The Consumer Financial Protection Bureau recently blogged about holiday scams that target elders. Beware of Scams Targeting Older People During the Holidays warns that
Scams that target older people occur every day, but you can count on scammers to ramp up their efforts to prey on people’s generosity during the holiday season. These grinches, armed with their dirty tricks, may even weave the holidays into elaborate stories to pull at your heartstrings as they slip their sticky fingers into your wallet.
During the holidays, the common scam known as the imposter or “grandparent scam” might be decorated with a special plea, a story of a relative in trouble who desperately needs money to fix a car or get out of jail – and home for the holidays.
These perpetrators are very skilled at what they do, and they aren't shy about intimidation:
The ruse known as the IRS scam takes on a vicious new twist with a grinch on the phone threatening an elder with being arrested and spending the holidays in jail for unpaid taxes or a fake debt. And then there is the predictable increase in false or imposter charities, which sound identical to the real ones. The pitch is wrapped in sympathy inducing requests for year-end, tax-deductible holiday donations. These grinches stand ready to take your credit card or check routing information and charge you for bogus Nutcracker ballet tickets, or a holiday charity fundraising event.
The CFPB offers tips for folks to protect themselves against these three scams and provides links to information available on the CFPB website. The blog post also appeared on the National Center for Elder Abuse website.
Tuesday, December 22, 2015
I was listening to NPR's Morning Edition recently while working on this Blog and that's how I learned about a great resource, a telephone-based screening test for hearing problems, that individuals can take at home. Offered by The National Hearing Test, the cost is $5 (free for AARP members) and the process was developed with the help of an NIH grant. What impressed me is it tests for the ability to hear words (numbers) against background noise, a very realistic screen for many people's concerns. After taking the test, you are offered guidance and resources for follow-up. The NPR story made the point that unlike vision problems, which are hard to blame on others, it is all too easy for those with hearing problems to assume the problem "is" background noise or a failure of younger people to "speak up." Further, evaluation of hearing can be an important marker for other health issues, including problems with cognition.
For most reliable results, the website encourages you to use a traditional wired-phone connection, not a cell phone.
According to operation's website (linked above):
The National Hearing Test is provided on a nonprofit basis. It has no financial connections with any hearing products or services. (Free tests are typically offered by organizations selling hearing aids or providing services for a fee.) The $5.00 fee helps defray the costs of making it widely available to the public and processing test data; any remaining money goes to support further research on hearing loss.
Perhaps "taking" the screening test is a holiday present we can give our families.
Monday, December 21, 2015
Robert Fleming of Fleming and Curti in Tucson, Az. (Robert is a nationally known elder law and special needs attorney, co-author of the Elder Law Answer Book, an adjunct at Stetson Law, and (in the interest of full disclosure a dear friend)) writes a weekly Legal Issues Newsletter. The December 7th, 2015 newsletter focused on Holiday Gifts for Older Family Members and Friends. The suggestions run from clothing and other items to help an elder stay warm to various cool technologies and gadgets used in the kitchen or in the home, or even the car. I liked the stocking stuffer suggestions as well as the phone that comes with captioning. Robert provides helpful links to the various items suggested in the newsletter. Check it out!
Sunday, December 20, 2015
Back in October, as part of the Bipartisan Budget Act, Congress eliminated a couple of Social Security claiming strategies (§ 831) that have been getting a lot of press (one is known as "file and suspend", the other, "restricted application"). The New York Times ran an article on December 4, 2015 discussing these strategies that are being eliminated and what options remain for individuals planning for their retirement. The End of Social Security Loopholes: What Now? examines the role of life expectancy in deciding when to start collecting Social Security retirement benefits. But, "[f]iguring out the best strategy is difficult because few retirees know how long they will live." The article discusses the variables that go into deciding which strategy is best and notes that these are not "one size fits all" decisions.
The Washington Post also ran an article about the elimination of these two claiming strategies and what that means for individuals planning for their retirement. As one Social Security strategy disappears, consider other smart options focuses on the elimination of the file and suspend strategy and offers 4 tips, including obtaining advice and preparing a budget.