Tuesday, April 19, 2016

More on Medicare LTC

After my post on an article about adding  a long term care benefit to Medicare, Professor Dick Kaplan (prolific author, elder law guru and friend) sent me an email reminding me about an article he wrote in 2004 that discussed the topic. "Cracking the Conundrum: Toward a Rational Financing of Long-Term Care,” is available from his SSRN page. Here is the abstract  

This article provides a comprehensive solution to the financing of long-term care for older Americans that balances government and family responsibility, while recognizing the different settings in which long-term care is provided. The article begins by examining the spectrum of long-term care in the United States from home health care to assisted living to nursing homes, as well as hybrids such as continuing care retirement communities. Successive sections of the article then analyze the federal government's health care program for older persons (Medicare), the joint state and federal program for poor people of any age (Medicaid), and private long-term care insurance in terms of how these mechanisms treat long-term care in each setting.

Finding serious deficiencies and inconsistencies in all three mechanisms, the article then offers a co-ordinated alternative: expand Medicare to cover long-term care in nursing homes but maintain responsibility for other long-term care settings with the affected individuals and their families. This approach recognizes that nursing home care substitutes for hospital care that Medicare would otherwise cover, while other long-term care settings substitute for family-provided care. Long-term care insurance would then be used as a means of financing long-term care in settings other than nursing homes, thereby making it more appealing. In addition, such insurance would be less expensive than presently, because it would no longer be priced to cover costly nursing home care. The article also recommends that such insurance be improved by standardizing policy options and features into a fixed set of packages that would be uniform among carriers. Other recommendations include ensuring price stability of issued policies and providing independent reviews of gatekeeper claim denials. The article concludes with some observations regarding financing of these proposals.
Professor Kaplan directs the reader to pages 82-88 for more on this topic.
Thanks Dick!

 

April 19, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, April 18, 2016

Pennsylvania Joins 40 Other States In Authorizing Tax Exempt "ABLE" Accounts

Pennsylvania lawmakers seem to be on a roll this month, following several months of log jam over the 2015-16 state budget.  The legislature passed SB 879 on April 13, and Pennsylvania Governor Wolf has now signed the law, enabling creation of tax-exempt savings accounts to benefit people with qualified disabilities. From the Governor's Office:

The accounts can be used for a wide-range of disability-related expenses including health care, housing, and transportation without jeopardizing eligibility for important programs on which individuals with disabilities must often depend.

 

“My administration is committed to promoting and encouraging independence, community-based supports and services, and employment for individuals with a disability,” said Governor Wolf. “Pennsylvanians with disabilities can now achieve greater fiscal self-sufficiency, without the risk of impacting their eligibility for benefits. I am proud to sign this bill today and continue our work to help individuals with disabilities stay in their homes and communities.”

U.S. Senator Bob Casey led efforts to win Congressional passage of the federal ABLE Act, which authorized states to establish tax-exempt savings accounts modeled on section 529 of the Internal Revenue Code, which recognizes state-established savings programs to meet future college expenses. Pennsylvania Treasury has been administering the Pennsylvania 529 program since 1993 and will administer the ABLE Program.

From NDSS's list of states with "ABLE Legislation," it can be seen that Pennsylvania's action makes it approximately the 41st in the nation to "enable" Able.  Over the weekend, Pennsylvania also became the 24th state to legalize medical marijuana.  

A helpful summary of the use of ABLE accounts, along with other tools that may assist a broader range of ages, including special needs accounts, is provided by Pennsylvania Elder Law guru, Jeff Marshall, here.  

April 18, 2016 in Estates and Trusts, Federal Statutes/Regulations, Social Security, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 17, 2016

Time for Medicare Part LTC?

Periodically we will see observations about whether Medicare should offer a long term care benefit as part of Medicare coverage (would this be Part E or maybe Part LTC?).  It isn't a secret that many often think Medicare has a long term nursing home benefit, confusing what Medicare covers with what Medicaid does. Health Affairs Blog ran a story recently about  Medicare and long term care. Medicare Help At Home offers some sobering data

Nine million community-dwelling Medicare beneficiaries—about one-fifth of all beneficiaries—have serious physical or cognitive limitations and require long-term services and supports (LTSS) that are not covered by Medicare. Nearly all have chronic conditions that require ongoing medical attention, including three-fourths who have three or more chronic conditions and are high-need, high-risk users of Medicare covered services.

Gaps in Medicare coverage and the lack of integration of medical care and LTSS have serious consequences. Beneficiaries are exposed to potentially high out-of-pocket expenses. Medicaid covers LTSS for very low-income Medicare beneficiaries, but only one-fourth of Medicare beneficiaries with serious physical or cognitive limitations are covered by Medicaid.

The authors offer a 3-part proposal that would expand Medicare coverage to include home and community-based coverages:

  1. A Medicare home and community-based benefit for those with two or more functional limitations, Alzheimer’s, or severe cognitive impairment, according to an individualized care plan based on beneficiary goals. This would cover up to 20 hours a week of personal service worker care or equivalent dollar amount for a range of home and community-based LTSS.
  2. Creation of new Integrated Care Organizations (ICOs) accountable for the delivery and coordination of both medical care and LTSS that meet quality standards, honor beneficiary preferences, and support care partners.
  3. Innovative models of health care delivery including a team approach to care in the home building on promising models of service delivery that improve patient outcomes, reduce emergency department use, prevent avoidable hospitalization, and delay or reduce long-term institutional care.

The article goes on to explain eligibility, beneficiary cost-sharing, financing, care delivery and coverage. The article concludes, offering that with the Baby Boomers " the Medicare program ... was not designed to support their [boomers] preferences for independent living and functioning.

Moving forward, adoption of a home and community based benefit in Medicare would constitute an important first step to helping beneficiaries afford the services and support they need to continue living independently. Adoption of innovative models of care emphasizing care at home or in independent living settings would reduce the difficulty and risk of obtaining services in traditional health care settings such as physician offices and hospitals. It would also reduce beneficiary reliance on Medicaid’s safety-net coverage of institutional care. It is a policy proposal worthy of serious consideration as the nation grapples with Medicare redesign to meet the needs of an aging population.

 

 

 

April 17, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (2)

Tuesday, April 12, 2016

Does the Statutory Definition of "Elder Abuse" Matter?

In April 2016, Senators Richard Blumenthal (D-CT), Bob Casey (D-PA), Sheldon Whitehouse (D-RI) and Al Franken (D-MN), introduced Senate Bill 2747 in the United States Senate.  Carrying the title of "Elder Protection and Abuse Prevention Act," one provision of the bill would amend existing federal law to redefine "abuse," as that phrase is used in the Older Americans Act.  The new definition would read:

The term "abuse" means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.

The existing language, defining abuse, provides: 

The term “abuse” means the willful--
(A) infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish; or
(B) deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.
 
Is the proposed change mere semantics? 
 
A quick search reveals that the new federal language is identical to language contained in at least one state's statute, Rhode Island's Section 42-9.2-2, used to define the scope of administrative authority for the state's Elder Justice Prosecution Unit.  One of the sponsors of the new bill is from Rhode Island.  
 
However, Rhode Island's criminal statutes do not provide an exact match.  Rhode Island law does provide that it is a crime for any person "primarily responsible for the care of an adult with severe impairments" to "willfully an knowingly abuse, neglect or exploit that adult," and it defines "abuse" as "subjection of an adult with a severe impairment to willful infliction of physical pain [or] willful deprivation of services necessary to maintain the physical or mental health of the person, or unreasonable confinement."  But, by removing any age restriction but narrowing the crime to victims with "severe impairments," there is room for argument about application of that statute to all elderly victims, or those with "only" early stages of physical or mental impairment.  
 
So, what is the reasoning behind the proposed change of the federal definition of "abuse?" Abuse of an elder person is not a "federal" crime.  Certainly it would be useful to have the definition match any funding authorization, and  perhaps that is a reason, as the new language mirrors the definition of abuse contained in the Social Security Act's provision for block grants to states for social services and elder justice initiatives, at 42 U.S.C. Section 1397j(1).

April 12, 2016 in Crimes, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)

Friday, April 8, 2016

DOL Guidance Available for Families on Wage Payments to Home Care Workers

U.S. Department of Labor has a new guide book, "Paying Minimum Wage and Overtime to Home Care Workers," to assist families in understanding updated rules for payment of home care workers. These rules became fully effective on January 1, 2016.

The goal of the recently finalized  "Home Care Final Rule" is to "make sure that home care workers have the same basic wage protections as most U.S. workers, including those who perform the same jobs in nursing homes and group homes."   The rule applies "if you hire the worker directly, and no agency or other organization is involved," but may also apply if you hired the worker through an agency.  

Employers must keep certain basic records for home care workers, and these records will be key to determining proper payment, especially for overtime:

1. Full name;

2. Social security number;

3. Home address;

4. Hours worked each day and total hours worked each workweek;

5. Total cash wages paid each week to the employee by employer, including any overtime pay; and

6. Any weekly amounts claimed by the employer as part of wages for housing or food provided to the employee/.

The guide explains special rules that apply if the paid care provider is a family member or  if the paid worker is "living in."

In addition, the guideline explains the "narrow" exemption from minimum wage and overtime rules that applies for home care workers who provide only "companionship services."  The key here is that the the worker can be spending no more than 20% of his or her working time on tasks such as assisting with personal care (bathing, dressing, cooking, cleaning, etc.) and the worker is not performing any medically related tasks.  

April 8, 2016 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 28, 2016

Medicare Part D Co-Insurance as Percentage?

Kaiser Health News ran a story on March 18, 2016 about co-insurance trends in drug coverages. Coinsurance Trend Means Seniors Likely To Face Higher Out-Of-Pocket Drug Costs, Report Says explains that a new report shows that "Medicare beneficiaries may get dinged with higher prescription drug bills this year because more than half of covered drugs in standalone plans require them to pay a percentage of the cost rather than a flat fee...." This report notes that over half of the Part D covered drugs have a coinsurance payment rather than a fixed copayment. This means greater out of pocket costs for Medicare beneficiaries.  As a result, predicting a beneficiary's out of pocket costs is more difficult.

The report, Majority of Drugs Now Subject to Coinsurance in Medicare Part D Plans is available here.  A pdf of the report is available here.

March 28, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Sunday, March 13, 2016

Drug Price Spikes Studied by Senate Special Committee on Aging

Have you seen the stories about the sudden increase in prices for particular drugs? That has caught the eye of the Senate Special Committee on Aging. There will be another hearing on the topic on March 17, 2016 at 10 a.m. “Senate Special Committee on Aging to hold the second hearing in a series on sudden price spikes in decades-old Rx drugs.” 

As well, last week "Senators Susan Collins (R-ME) and Claire McCaskill (D-MO), the Chairman and Ranking Member of the Senate Special Committee on Aging, ...  introduced the Increasing Competition in Pharmaceuticals Act to help ensure that a clear process is in place for FDA to prioritize the review of generic drug applications."  As the press release notes "the Committee’s investigation revealed that some older drugs lack an FDA-approved generic competitor.  This lack of competition is a significant contributing factor that can allow companies to acquire and sharply increase the cost of these older drugs that are no longer protected by patents." 

The text of the bill is available here.

March 13, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (1)

Tuesday, March 1, 2016

NPR Story on Nursing Home Evictions

Previously I wrote about a story in Kaiser Health News about nursing home residents stuck in hospital "limbo" and the ensuing litigation.  NPR also did a story about this. Nursing Home Evictions Strand The Disabled In Costly Hospitals was released on February 25 and features an audio of the story as well as the print version.  Although the suit is filed in California, this is not a California-specific issue.  As the story notes

This is not just a California issue. Nationwide, between 8,000 and 9,000 people complain to the government about nursing home evictions every year. It's the leading category of all nursing home complaints, according to the federal Administration for Community Living.

Robyn Grant thinks the problem is even larger than reported. Grant would know: She's the public policy director for the nonprofit National Consumer Voice for Quality Long-Term Care, so she hears about many nursing home evictions around the country like the ones in California.

March 1, 2016 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (1)

Monday, February 29, 2016

Five Star Rating System: Clarity or Confusion?

You recall Medicare's 5 Star Rating System to aid consumers in making choices regarding services and facilities. Kaiser Health News (KHN) ran a story on February 23, 2016 about the difference between how consumers rate facilities vs. how Medicare rates facilities.  Dueling Star Ratings May Confuse Some Home Health Patients explains that Medicare assigns stars "primarily based on Medicare’s assessment of how often patients got better. But [looking] further ... may lead to confusion. Medicare also posts stars to convey how patients rate agencies after their care is over."

KHN did a survey on the frequency of these disparities  and found that "[s]uch contradictory results between how patients view home health agencies and how the government rates them are hardly unusual."  

In a statement, the Centers for Medicare & Medicaid Service said the different star ratings should not be confusing. “CMS stresses that website users should look at all of the different types of measures available for a given provider type, including for home health care agencies,” the statement said. “By providing both clinically based and survey-based measures, CMS hopes to make available to the public a range of perspectives and information that consumers can evaluate to help inform their decision about an agency.”

The disparity at least in part is explained: "[s]ome of the differences between home health care patient experience and clinical quality stars can be chalked up to the fact that the two domains focus on different facets of home health care." The article goes on to quote elder care experts on their views about the reasons for the differences in the rankings.  The article wraps up noting it is unknown how many Medicare beneficiaries use the 5-star rating system, and understand them.

February 29, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Sunday, February 28, 2016

Abandoned Nursing Home Residents?

Kaiser Health News (KHN) ran a story titled The Agonizing Limbo Of Abandoned Nursing Home Residents. The story focuses on the refusal of some California nursing homes to readmit residents after a hospital stay.  The story opens with a story of one resident who "had been living[in a nursing home] for four years... [and] the home refused to readmit him, even after being ordered to do so by the state. Nearly nine months later, [the resident] is still in the hospital."  It seems that these residents are trapped in a sort of limbo.

Nursing home residents are entitled to hearings under federal law to determine whether they should be readmitted after hospitalization. The state Department of Health Care Services holds the administrative hearings, but has said it is not responsible for enforcing the rulings.

But the state Department of Public Health, which oversees nursing homes, neglects to enforce the rulings and sometimes disagrees with them, according to advocates and court documents.

That leaves residents .... [even those] who won ... [the]  hearing .... with little recourse — and not many places to go. And since many nursing home residents have publicly-funded insurance, it means taxpayers are on the hook for hospital stays long after the patients are ready for discharge.

California Advocates for Nursing Home Reform (CANHR) in November, 2015 filed suit against California Health & Human Services on behalf of some of these residents with an upcoming hearing in March of 2016. The suit seeks "to require California to establish a hearing process that complies with federal law and to enforce the rulings." The defendant has filed a motion to dismiss.

February 28, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Tuesday, February 23, 2016

Only Limited Authority as Health Care Agents? The Latest Grounds to Challenge Dreaded Arbitration Clauses in NH Cases

The New York Times offers another window into concerns about pre-dispute binding arbitration provisions that are routinely found in nursing home agreements.  This is a long-simmering war, with many battlefronts and tactical arguments, as documented in the article.  However, the article also focuses on a narrow group of cases where courts have rejected a binding effect for arbitration clauses signed by someone serving "merely" as a health care agent for the incapacitated resident. (I hope my Contracts course students this semester are reading this article!)  

The article offers an additional opportunity to consider the tensions between public policies on either side of the debate over "fairness" of arbitration as a forum for consumer claims:

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans.. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

 

State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.

 

Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.

 

Mr. Barrow’s case [set for trial in Massachusetts] is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back. As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf.

 

Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration.

For more, read Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?

Our thanks to attorneys Karen Miller in Florida and Morris Klein in Maryland, plus Dickinson Law students Joe Carroll, Corey Kysor and Kadeem Morris in Pennsylvania for sending us the link to the NYT coverage.

February 23, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Monday, February 22, 2016

The Gerontologist Special Issue on Veterans

The February 2016 issue of The Gerontologist is devoted to Veterans issues.  The issue contains a number of articles on a variety of interesting topics. Check it out!

February 22, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Veterans | Permalink | Comments (0)

Monday, February 1, 2016

How Well Do Families Understand Updated Wage & Hour Rules for "Home Care"?

Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?"  For many years, I would get a blank stare or, perhaps, "what exactly is elder law?"  Now, more frequently the response is "do you have time for a quick question?"  (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....") 

I'm hearing more questions about home care workers.  One frequent question is about overtime pay, and the type of employment definitely matters.  The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.  

Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight.  Family members will tell me "we just want someone there in case something happens."  That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services.  There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.  

In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation.  See Home Care Association of America v. Weil.  Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.  

As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection."   "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)  

DOL provides this example:

Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.

For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city! 

February 1, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Sunday, January 31, 2016

Don't Fall for this (or any other) Scam

The Social Security Administration posted on its blog about a Social Security scam involving phishing.  According to the post, the scam focuses on "protecting" yourself from identity theft and financial fraud.  "The subject line says “Get Protected,” and the email talks about new features from the Social Security Administration (SSA) that can help taxpayers monitor their credit reports, and know about unauthorized use of their Social Security number. It even cites the IRS and the official-sounding “S.A.F.E Act 2015.” It sounds real, but it’s all made up." The post offers a couple of tips to suss out a scam. If the email ended up in your junk folder, it could be a scam. Also, mouse over the URL and see if it is really from SSA, or from a .com site instead.

Always remember-if in doubt, don't click on the link and don't provide personal information.

January 31, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (0)

Monday, January 11, 2016

Another Must Read from Professor Kaplan

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.

January 11, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Wednesday, January 6, 2016

SSA releases ABLE POMS

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.

January 6, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Other, Social Security | Permalink | Comments (0)

Thursday, December 31, 2015

Are Financial Institutions Part of the Problem When it Comes to Enabling Financial Exploitation?

The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions: 

Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....

 

To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.

 

The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.

In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary.  Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:

Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.

 

The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.

Certainly I understand industry hostility to more regulations.  At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting.  A "carrot" rather than a "stick" to encourage reporting. 

Our thanks to University of Illinois Professor Dick Kaplan for sharing this article. 

 

December 31, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, December 29, 2015

Nursing Home Residents-Privacy Violations

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)

Sunday, December 20, 2015

Social Security: File and Suspend No More

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.

December 20, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (1)

Tuesday, December 15, 2015

Is There a New "War on Drugs" -- or rather, on Drug Pricing?

The Senate Special Committee on Aging is taking up the important issue of drug pricing:

A Senate investigation of drug-price spikes at four companies kicked off Wednesday with specialists from all corners of the health-care system testifying that they're powerless to manage the out-of-control prescription costs.

 

The hearing launches the Special Committee on Aging's investigation into the soaring prices of old drugs, including the recent overnight price hike of Daraprim from $18 to $750.  Doctors and policy experts offered a slew of proposed policy solutions, such as expediting applications for generic drugs to increase competition and requiring companies to reveal how much drugs really cost.

 

But the testimony to the committee in advance of the hearing underlined a stark fact about the current system, too: Doctors, companies that manage prescription drug benefits, hospitals, and health care policy experts alike feel fairly powerless to control high drug prices -- because they are allowed.

 

For instance, a pediatrician from the University of Alabama at Birmingham testified that an infant needed a treatment that had increased from $54 a month to $3,000 a month, causing the pharmacist to scramble for a solution. A kidney transplant patient in Baltimore began experiencing hallucinations as her medical team tried to obtain a drug once easily available.

For more coverage, read the Washington Post's article, Doctors, Hospitals Condemn Out-of-control Drug Prices as Senate Investigation Begins.

December 15, 2015 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (1)