Thursday, May 24, 2018

Banking Industry and the New Senior Safe Act

The "Senior Safe Act," part of a federal banking reform law that will modify Dodd-Frank, has been passed by both houses of Congress with bi-partisan support.  Note the sometimes clever spelling for "Safe" as "$afe," used by proponents.  From a McKnight's Senior Living report on  May 23, 2018:

A bipartisan bill intended to help protect older adults from financial exploitation and fraud is on its way to the president's desk to be signed into law.

 

The Senior $afe Act, authored by U.S. Sens. Susan Collins (R-ME) and Claire McCaskill (D-MO), passed in the House of Representatives on Tuesday as part of a bipartisan banking reform package after previously being passed by the Senate in March. President Trump tweeted on Wednesday that he plans to sign the legislation into law.

 

Collins and McCaskill had introduced the Senior $afe Act in 2017 when they were chairman and ranking member, respectively, of the Senate Special Committee on Aging. Collins still leads the committee, and McCaskill remains a member.

 

The legislation protects banks, credit unions, investment advisers, broker-dealers, insurance companies and insurance agencies from being sued for reporting suspected exploitation or fraud as long as they have trained their employees about how to identify the warning signs of common scams and make reports in good faith to the proper authorities.

 

“The Senior $afe Act, based on Maine's innovative program, will empower and encourage our financial service representatives to identify warning signs of common scams and help prevent seniors from becoming victims,” Collins said in a statement.

 I'll report more once I have a close look at the language, as enacted.  

May 24, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, May 23, 2018

Myths & Mistakes About New Medicare Cards: AARP Research Survey

As we all know, CMS has been rolling out the new Medicare cards without SSN on them.  AARP Research conducted a survey about the new cards, and the results are quite interesting.  2018 AARP Survey: Experience and Knowledge of Medicare Card Scams explains:

n March 2018, AARP engaged Alan Newman Research to conduct a national research study among U.S. adults ages 65 and older about their experience and knowledge around the new Medicare cards being issued in April 2018 and potential vulnerability to scams related to the new card and benefits. 

Key findings include the following:

  • Most (76%) U.S. adults ages 65 and older indicate they have not seen, read, or heard much or anything at all about the new Medicare cards (or are not sure).
  • Three in four (75%) Medicare beneficiaries are not sure or are incorrect about the key change with the new cards being new identification number.
  • Nearly two-thirds (63%) of Medicare beneficiaries are unsure or are incorrect in believing that Medicare will charge new beneficiaries a $25 processing fee for the new card. 
  • Over half (56%) are not sure or are wrong in thinking that Medicare will call them to verify their Social Security number before they can receive their new card.
  • At least one in three are extremely/very concerned about being a target of Medicare scam (33%) or victim of identity theft (40%).

A pdf of the survey results is available here.

 

May 23, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink | Comments (0)

Tuesday, May 22, 2018

Congrats to NAELA

NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits.  The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more.  NAELA members unable to attend may check the NAELA website for more information.

In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling.  Congrats NAELA!

(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)

 

May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, May 16, 2018

National Senior Fraud Awareness Day

Yesterday, May 15, 2018, was designated by the U.S. Senate as "National Senior Fraud Awareness Day." The reason for the day, according to the Congressional Record is "To Raise Awareness About the Increasing Number of Fraudulent Schemes Targeted At Older People of The United States, To Encourage The Implementation of Policies to Prevent These Scams From Happening, and to Improve Protections From These Scams For Seniors."

Senator Collins for herself and 4 other Senators, and introduced the resolution, S. Res. 506.

Here it is in its entirety:

Whereas, in 2017, there were more than 47,800,000 individuals age 65 or older in the United States (referred to  in this preamble as ``seniors''), and seniors accounted for  14.9 percent of the total population of the United States;

Whereas senior fraud is a growing concern as millions of older people of the United States are targeted by scams each year, including the Internal Revenue Service impersonation scams, sweepstakes and lottery scams, grandparent scams, computer tech support scams, romance scams, work-at-home scams, charity scams, home improvement scams, fraudulent investment schemes, and identity theft; Whereas other types of fraud perpetrated against seniors include health care fraud, health insurance fraud,  counterfeit prescription drug fraud, funeral and cemetery  fraud, ``anti-aging'' product fraud, telemarketing fraud, and internet fraud;
Whereas the Government Accountability Office has estimated that seniors lose a staggering $2,900,000,000 each year to an ever-growing array of financial exploitation schemes and scams;
Whereas, since 2013, the fraud hotline of the Special Committee on Aging of the Senate has received more than 7,200 complaints reporting possible scams from individuals in all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
Whereas the ease with which criminals contact seniors through the internet and telephone increases as more creative schemes emerge;
Whereas, according to the Consumer Sentinel Network Data Book 2017, released by the Federal Trade Commission, people age 60 years and older were defrauded of $249,000,000 in 2017, with the median loss to defrauded victims age 80 and older averaging $1,092 per person, more than double the average amount lost by those victims between the ages 50 and 59 years old;
Whereas senior fraud is underreported by victims due to embarrassment and lack of information about where to report fraud; and
Whereas May 15, 2018, is an appropriate day to establish as ``National Senior Fraud Awareness Day'': Now, therefore, be it
Resolved, That the Senate--
(1) supports the designation of May 15, 2018, as ``National Senior Fraud Awareness Day'';
(2) recognizes ``National Senior Fraud Awareness Day'' as  an opportunity to raise awareness about the barrage of scams  that individuals age 65 or older in the United States  (referred to in this resolving clause as ``seniors'') face in person, by mail, on the phone, and online;
(3) recognizes that law enforcement, consumer protection groups, area agencies on aging, and financial institutions all play vital roles in preventing scams targeting seniors and educating seniors about those scams;
(4) encourages implementation of policies to prevent these scams and to improve measures to protect seniors from scams targeting seniors; and
(5) honors the commitment and dedication of the individuals and organizations who work tirelessly to fight against scams targeting seniors.

  

 

May 16, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, May 13, 2018

New Article: Primer on Disability Law for Land Use & Zoning

The intersection of land use and zoning laws and regs with a person's ability to live at home is so important. I wanted to let you know about a new article on the topic: A Primer on Disability for Land Use and Zoning Law  posted recently on SSRN.  The article is published in Volume 4 of  the Journal of Law, Property, and Society at 1 (March 2018). Here is the abstract

Approximately 20-30 percent of American families have a family member with a disability, many with a mobility impairment. Many people need access to disability services and programs. They need the availability of group homes, senior housing, drug rehabilitation centers, medical marijuana dispensaries, and counseling clinics. This leads to land use disputes.

This Primer is designed for people familiar with property law and land regulation (planning and zoning), and with little experience with disability law. The goal is to present an introduction that facilitates understanding of the intersections between land use law and disability. In general, the legal requirements of primary concern are limited, such that only a few parts of our expansive disability law are most relevant to the vast majority of planning and zoning matters. This Primer will guide the reader through these key provisions. The Acts discussed in this Primer include the Americans with Disabilities Act (ADA), the Rehabilitation Act (RHA), and the Fair Housing Act (FHA).

The 45 page article is available for download as a pdf from the Journal's website, here.

May 13, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing, Other, State Statutes/Regulations | Permalink | Comments (0)

Thursday, May 10, 2018

Why Can't Medicare Beneficiaries use Drug Discount Coupons?

Because Medicare says so, that's why. Actually that's a bit of a glib answer. Instead, as Kaiser Health News explains it in the article, Medicare Beneficiaries Feel The Pinch When They Can’t Use Drug Coupons it's about impartiality.

Under the federal anti-kickback law, it’s illegal for drug manufacturers to offer people any type of payment that might persuade them to purchase something that federal health care programs like Medicare and Medicaid might pay for. The coupons can lead to unnecessary Medicare spending by inducing beneficiaries to choose drugs that are expensive.

“The law was intended to prevent fraud, but in this case it also has the effect of prohibiting Part D enrollees from using manufacturer copay coupons … because using the coupon would be steering Medicare’s business toward a particular entity,” said Juliette Cubanski, associate director of the Program on Medicare Policy at the Kaiser Family Foundation.

The story digs down deeper into the issue regarding coupons and discusses the ramifications of such use, including higher costs, dismissal of less-expensive alternatives and annual ceililngs on the cards.

Now we know.

May 10, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, May 7, 2018

Wisconsin Study Reports 20% of Long-Term Care Jobs Are Unfilled

From Wisconsin Public Radio on the Long-Term Care Workforce Crisis Report of 2018:  

A coalition of Wisconsin health care organizations is warning that the state's shortage of long-term care providers continues to grow.

 

The study, put together by several groups across the state, says 1 in 5 direct caregiver positions in the state is going unfilled. That's up from 1 in 7 positions in 2016.

 

Starting wages in the profession are so low that many potential workers never apply, according to the report. The median hourly starting wage for personal caregivers is $10.75 an hour, according to the study, while other positions outside health care start at $12 an hour.

 

The report found Wisconsin's low rate of Medicaid reimbursement is a key factor keeping provider wages low.

 

Sarah Bass of the Wisconsin Assisted Living Association said with so many unfilled positions, many facilities are cutting back, even though demand for long-term care continues to grow.

 

"Assisted living providers are closing their doors, or shutting down areas of their assisted living facilities, because they don't have the staff to safely take care of the residents," she said. "They're reducing their admissions."

These problems exist despite some increases in state funding for skilled care and family care workers in the latest budget.  

May 7, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, May 4, 2018

The Continuing "Problem" of Wheelchairs and Walkers in CCRCs and Assisted Living

Recently I was asked the question whether a CCRC could bar new residents from moving into independent living units, if they were using wheelchairs or walkers.  The question perplexes me, not just because of the legal implications under the Fair Housing Act and the Americans with Disabilities Act, and other federal laws, but because I do understand what was motivating the question, at least in part. It was a concern about "sustainability" of the community living model, and the need to attract younger, healthier residents. In a sense, it was an argument that "I don't mind, but others might."  

Paula Span, longtime columnist for the New York Times takes this issue to another venue  -- "assisted living" -- where some operators are attempting to ban those who use wheelchair, even temporarily.  The cited reason is that "we cannot accomodate a wheel-chair bound patient." She captures the dilemma well in her title, "Wheelchairs Prohibited In the Last Place You'd Expect."

Ultimately, I think we all need to be more comfortable with the fact that we do grow old and we do sometimes need assistance.  But, I understand, this is tough to accept.  

 

 

May 4, 2018 in Consumer Information, Discrimination, Ethical Issues, Federal Statutes/Regulations | Permalink | Comments (1)

Tuesday, May 1, 2018

Change Proposed re: Medicare Payment to Nursing Homes

Have you checked out the unpublished proposed rule from CMS (scheduled to be published on May 8, 2018)? The lengthy proposal, available here as a pdf, provides this summary

This proposed rule would update the payment rates used under the prospective payment system (PPS) for skilled nursing facilities (SNFs) for fiscal year (FY) 2019. This proposed rule also proposes to replace the existing case-mix classification methodology, the Resource Utilization Groups, Version IV (RUG-IV) model, with a revised case-mix methodology called the Patient-Driven Payment Model (PDPM) effective October 1, 2019. It also proposes revisions to the regulation text that describes a beneficiary’s SNF “resident” status under the consolidated billing provision and the required content of the SNF level of care certification. The proposed rule also includes proposals for the SNF Quality Reporting Program (QRP) and the Skilled Nursing Facility Value-Based Purchasing (VBP) Program that will affect Medicare payment to SNFs.

There's a provision for exceptions for SNFs when a disaster strikes (referred to in the proposed rule as "extraordinary circumstances") adding 42 C.F.R. 413.33(d)(4). 

According to InsideHealthPolicy, in their article, CMS Proposes New Payment Model For Skilled Nursing Homes describes the changes: "CMS is proposing to overhaul the way Medicare pays nursing homes so as to focus more on each resident’s particular needs and move away from volume-based reimbursements, the agency said in a proposed rule released Friday (April 27). The new payment model would tie payments to patients’ conditions and simplify nursing homes’ reporting requirements...." (a paid subscription is required to read the full article).

 

 

May 1, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, April 30, 2018

Bank at the US Post Office?

My brother (thanks big brother-I guess this means you read the blog-yay!) sent me an article published in The Hill with an interesting proposal!  Published on April 26, 2018, The poor need bank accounts, and USPS has the answer highlights a bill introduced by Senator Gillebrand  which would create "provide a public option in basic banking services through the U.S. Postal System."

Why, you may ask, propose that the USPS get into the banking business?  Well, because there is a "persistent problem of widespread financial exclusion, which means a household is either unbanked or underbanked. Recent data shows that 7 percent of households are simply unbanked since they lack a checking or savings account at a bank."  Consider the implications of not having a bank account. If you have to cash a check, where do  you go? "Instead, they have to rely on the predatory alternative financial services, such as payday lenders, check cashing services and the like." 

The article also introduces us to the concept of "underbanked" which means "19.9 percent of American households ... at some point during the year, they rely on high-cost alternative financial services to meet their financial needs. That leaves over one-in-four American households excluded from mainstream financial services."  Although these alternatives may work for those unbanked or underbanked, they are not without costs, both financial and otherwise.

The article discusses reasons why low-income households find themselves in this situation, including a focus on higher-profit activities and closing branches.  So this is where the USPS comes in under the bill.

The Gillibrand bill seeks to address the lack of universal access through the creation of a postal bank. An added bonus of this measure is that it regulates consumer financial protection abuses by making predatory lending practices uncompetitive.

The bill would allow all households to open accounts at the post office, with a $20,000 limit on checking and savings accounts. Further, the bill allows for small-dollar loans capped at $500 at one time.

The rates on these loans are reasonable, with the bill linking the interest rates to the 1-month Treasury bill constant maturity rate, though a low, fixed rate may be preferable.

Through offering financial services at post offices, the bill would provide much of the physical infrastructure needed to counteract the trend of bank-branch closings. The USPS already has the geographic infrastructure to support universal access: a post office in every ZIP code.

The article offers suggestions for services as well as pitfalls. Interesting concept.

April 30, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Health Affairs Blog Targets "Never-Ending Misuse of Antipsychotics in Nursing Homes"

I'm always interested in articles about the use -- misuse? -- of antipsychotic medications for older adults.  Therefore I was eager to read the recent post on the Health Affairs Blog by David Introcaso entitled The Never-Ending Misuse of Antipscyhotics in Nursing Homes. The article begins:

In response to a generic question about post-market drug surveillance posed during a February 2007 House Energy and Commerce Committee hearing, Dr. David Graham, then associate director of science and medicine in the Food and Drug Administration’s (FDA’s) Office of Surveillance and Epidemiology, stated: “I would pay careful attention to antipsychotic medications. … The problem with these drugs are that we know that they are being used extensively off label in nursing homes to sedate elderly patients with dementia … . It is known that the drugs don’t work in those settings. … But the fact is, is that it increases mortality perhaps by 100 percent. It doubles mortality. So I did a back-of-the-envelope calculation on this and you probably got 15,000 elderly people in nursing homes dying each year from the off-label use of antipsychotic medications for an indication that FDA knows the drug doesn’t work. This problem has been known to FDA for years and years and years.”

I've highlighted in bold the words that are the focus of my interest:  "It is known that the [antipsychotic] drugs don't work in those settings."  No citation to authority here - and it is the authority for this statement that I would like to see.  Is there a study of the use of antipsychotic drugs showing they "don't work" for dementia patients?  What does it mean "not" to work?  Is all "use" a "misuse" for patients who "only" have dementia?

I ask because I saw my father struggle at home for several years with dementia.  As the disease robbed him of the ability to understand where he was and why he couldn't remember things, he sometimes became aggressive.  He was still very strong.  His doctor tried various mild anti-anxiety drugs, but they seemed to interact with his blood pressure issues (and perhaps his other medications).  He would sometimes swing between aggressive behavior and losing consciousness.  Finally his doctor suggested a very small dose of an antipsychotic.  My mother was desperate for help at the time -- and thus, Dad started on the drug. This is an example of "off label" use.  I was worried, and said so, because I knew the associated concerns about increased mortality for those with dementia.  I looked for specific studies of risk versus benefit and frankly, all I could find were records showing the ratio of deaths for individuals with dementia who also were taking an antipsychotic drug.  Mere correlation is not necessarily evidence of causation. What I was looking for was a careful study of risk versus benefit.   

Over time I saw that the small dose did "work" for this one individual, my father.  He wasn't "knocked out."  He wasn't "docile."  He wasn't "asleep all the time" -- typical of the accusations that are often made about misuse of antipsychotics.  What we did see was that he was much less likely to strike out an arm or push someone hard when he was frustrated (and yes, he was still frustrated).   The small dose did not interfere with his blood pressure or the other medications he was taking.  Perhaps most importantly, he continued to live at home for many more months. Eventually it was appropriate to wean him off the antipsychotic altogether.  

One anecdotal account is not evidence.  But the fact that there reportedly continues to be "widespread"use of antipsychotic drugs by the elderly means there could be some very real need for  safe, effective alternatives. Behavioral health approaches are important, but those too can have limits in effectiveness.  I'd certainly like there to be "good" studies of the use of these drugs and any drug that might be able to help a person suffering from dementia live a less tormented life.  Not zoned out and not asleep all the time, but also not likely to harm themselves or those who on a daily basis are trying to help them live as normally as possible.    

April 30, 2018 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (1)

Thursday, April 26, 2018

How a Dementia Diagnosis Depletes Life Savings

The San Jose paper, the Mercury News ran an important story about the impact of dementia on life savings. This isn't something new to elder law attorneys, but it's an important recognition of how Medicare covers health care based on a diagnosis.  How dementia can drain a family’s life savings  offers this heading " Medicare offers no help for the high costs of dementia caregiving."  We know that Medicare has certain requirements for coverage. As the article explains it

”Medicare is a lifeline for seniors and the disabled, paying for “medically necessary” costs such as hospitalization, surgery, chemotherapy, transplants, medications, pacemakers and other interventions... A dementia diagnosis demands none of that. What it does require, however, is around-the-clock “custodial care,” such as help with eating and dressing, and constant supervision. That’s not covered by Medicare. And it’s extraordinarily expensive, according to a report released last month by the Alzheimer’s Association...Families’ out-of-pocket costs for a patient with dementia are 80 percent higher than the cost for someone with heart disease or cancer, according to a 2015 study in the Annals of Internal Medicine.

How much can families expect to spend caring for those with dementia?  The story says 60 BILLION (yes that's not a typo-60 BILLION) based on a report from the Alzheimer's Association.  That doesn't include those who have early onset Alzheimer's.

The options are few for those with this diagnosis.  Long Term Care Insurance, paying privately, Medicaid quite possibly, but really not Medicare unless there is a hospitalization. Forget home care or memory care being covered by Medicare, the article notes.

This is not a new issue but it's certainly becoming a bigger issue with the significant number of Boomers. Read the article. It's important!

 

April 26, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Commission on Law & Aging-Latest Issue of BIFOCAL

Happy Friday! If you haven't read the latest issue of BIFOCAL, the publication of the American Bar Association Commission on Law & Aging, check it out here. This issue contains 6 articles, including the implications of the tax bill on older Americans, POLST issues to avoid, the new Medicare cards, a book review, and a preview of the 2018 NALC conference.  Access the latest issue here.

April 26, 2018 in Advance Directives/End-of-Life, Books, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Programs/CLEs | Permalink | Comments (0)

Wednesday, April 25, 2018

Test Your Social Security IQ With These Quizzes!

Kiplinger offers a quiz for you to test your knowledge of Social Security. Do You Really Understand Social Security? offers a ten question quiz with explanations.  After you take that quiz, then take the Do You Know the Best Social Security Claiming Strategies? another 10 question quiz with explanations. These would also be really good to have students take to test their knowledge after you have covered Social Security in your courses.

 

April 25, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (0)

Tuesday, April 24, 2018

Medicare's Observation Status-Impacting the Pocket Book of Patients

We have had several blog posts about the issues with Medicare's Observation Status.  A recent story on NPR (thanks to our friend Professor Naomi Cahn for sending it to us) gives us a first-person account of the impact observation status has on a patient's checkbook. How Medicare's Conflicting Hospitalization Rules Cost Me Thousands Of Dollars tells the story of a daughter who had to pay $12k for a nursing home stay for her mother's care because her mother didn't have a qualifying three-day hospital stay even though her mother was in the hospital for 4 nights. Why wouldn't Medicare pay? Say it with me now-observation status.  As the daughter relates,  her "mother was caught in an administrative wonderland where she slept at a hospital for four nights, but the paperwork said she was an inpatient only one of those nights. Medicare's rules, dating back to the 1960s, require people to spend three nights in a hospital before the federal program will pay for inpatient rehabilitative care."  She notes her frustration with the explanations that focused on rules rather than her mother's medical care:

  • The doctor couldn't admit her as an inpatient because she didn't have a qualifying diagnosis.
  • Her status was changed from observation to inpatient on the third day because Medicare requires that.
  • They could not change her status to inpatient for the entire stay because they didn't want to be audited.
  • She couldn't go to acute rehabilitation, which Medicare pays for, because there was no evidence she had had a stroke or heart attack.

She describes the competing Medicare Rules that produce this dilemma, and hospitals' concerns about audits. She also describes software that hospitals use to decide whether to admit a patient or maintain the patient on observation status. To admit or not to admit, that is the question! (with apologies to William Shakespeare).  This long-standing problem rule is well-known, and Congressional bills to fix it haven't gotten traction, she writes.  Why not shelve the three-night requirement?  The article mentions money as a likely explanation, but it appears that it is not 100% certain that is the reason, as the author cites to two studies from the '70s.

Regardless, I do think we can agree that the requirement catches some folks off guard (despite the NOTICE Act) and costs many folks who need SNF care subsequently a lot of money.

For more on the issue of observation status, visit the Center for Medicare Advocacy.

April 24, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Tuesday, April 17, 2018

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

Testimony before PA House Hearing on Access to Justice 4.11.18TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions. PA House of Representatives Hearing on Access to Justice for Older Adults 4.11.18
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Thursday, April 12, 2018

SSI 101

I know it's  near the end of the semester, so tuck this resource away for your classes for next fall. Justice in Aging has released Supplemental Security Income 101 : A Guide for Advocates. 

Here's the reason for this guide: "This Guide is designed to introduce advocates and individuals who provide assistance to older adults to the Supplemental Security Income (SSI) program. This Guide is focused on the basics of the SSI program for those who may qualify based on age (65 years or older): the benefits, key eligibility criteria, and the application and appeals processes. This Guide is intended to serve as a complement to other practice guides that focus on issues involving SSI disability determinations, eligibility, and benefits."

The guide is perfect for law students and others who need to gain familiarity with SSI, starting with an explanation of SSI and explaining the distinction between SSI and SSDI.

Great job Justice in Aging!

April 12, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security | Permalink

Tuesday, April 10, 2018

Right to Try Bill Passes House on Second Try

According to the New York Times, late last month, the House of Representatives passed the right to try bill on their second attempt. House Passes Bill That Would Give Patients Access to Experimental Drugs explains that "[s]upporters said the bill would give dying patients a chance to obtain potentially helpful prescription drugs without waiting for the completion of clinical trials or going through a process established by the Food and Drug Administration to allow the use of “investigational drugs” outside clinical trials." There were supporters as well as opponents of the bill. 

The House and Senate bills would establish a new pathway providing access to unapproved medicines for certain patients who had exhausted other treatment options. To qualify under the House bill, a patient would have to have some kind of terminal illness: a condition that is likely to cause death “within a matter of months” or “irreversible morbidity that is likely to lead to severely premature death.”

Nothing in the bill would require pharmaceutical companies to provide experimental drugs to patients who requested them. Drug manufacturers sometimes turn down requests because they have only a limited supply or they are concerned about legal and medical risks.]

To address such concerns, the legislation would shield drugmakers, doctors and hospitals from some of the legal risks of providing unapproved drugs to patients. Doctors and hospitals would generally be protected unless they engaged in gross negligence or willful, reckless or criminal misconduct.

April 10, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Other, Science | Permalink | Comments (0)

Whither Goest Deregulation of Nursing Homes?

I've been struck by the contrast in two recent articles.  The always wise Toby Edelman, senior policy attorney at the Center for Medicare Advocacy,  was writing about Deregulating Nursing Homes.  He begins:

In lockstep with the nursing home industry, the Trump Administration is rapidly dismantling the regulations and guidance that have been developed over the past 30 years to implement and enforce the federal Nursing Home Reform Law. Until the Christmas Eve 2017 report in The New York Times, these devastating changes, often made without any public notice or comment, received no public attention.

Toby reminds us that a "regulatory system is intended to prevent avoidable bad outcomes in the first place."  But in his view, both the regulatory system and "the enforcement system .. . [are] under severe attack."

On the other hand, I just read an equally sincere essay authored by a long-term nursing home administer, entitled Why I Chose to Leave the Nursing Home Profession: A Fed-Up Executive's Story.  She writes about her frustrations in trying to do the right thing for residents:

Regulations that are so prescriptive that they dictate the exact steps required to comply with the regulation create nothing but an assembly line of care — which is exactly what we are supposed to be fighting against.

 

I find it baffling that regulations require a facility to operate a “home-like” environment, but then sends surveyors into a facility to pick apart attempts to individualize care. For example, many residents wish to have one side of their twin bed up against a wall to create an increased sense of safety, as well as assist with bed mobility. Upon notification of a surveyor that this was a form of restraint, we had to “undo” the beds that were set up this way to avoid a citation for restraints.

 

Then that started the tedious process to evaluate the resident, obtain consent, revise the care plan and ensure that documentation from the staff addressed the continued need of the resident.

 

The paternalistic approach of “we know what is best for you” will only serve to solidify the Institutional care model that seems to be the chosen and preferred method for our societal approach to caring for the frail elderly.

This writer, Julie Boggess, most recently the CEO for Bethesda Rehab and Senior Care in Chicago, admits that "regulations are needed and should serve as the foundation of quality care and service."  But, her final words are especially sobering:

But when things like a missing word in a policy or one missed temperature log recording or a date label that fell off a frozen bag of beans is more important than resident and family satisfaction and outcomes of care, there is a serious problem, and it is driving passionate hard-working individuals out of this industry.

 

The conclusion that propelled me out of this industry is that I, and my staff, were in the quest for quality and culture change alone. The government is nothing but an impediment. I thought the goal was to improve quality care, but if the real goal is to push out good people from the industry, then the government is wildly successful.

Lots to think about here.

April 10, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 8, 2018

Are States' "Slayer Laws" Preempted by ERISA Rules on Entitlement to Pension Survivor Benefits?

Here's an unusual case to start off a new week.  In Laborer's Pension Fund v. Miscevic, the 7th Circuit faced interesting statutory interpretation questions about whether "survivor" benefits available under a murdered's man's pension must be paid to the very woman who killed him, his "surviving" wife.   

The first question focused on ERISA's rules, asking whether the federal law (which does not contain "slayer" provisions) preempted any disqualifying effect of state slayer laws.  Ultimately, considering the issue as a matter of first impression for federal appellate courts, the 7th Circuit rejected the ERISA preemption argument.   

But that left the question of the effect of the Illinois law in light of additional, unique facts. The wife argued her state criminal court verdict of "not guilty by reason of insanity" barred the disqualifying effect of the Illinois slayer statute.  The Court analyzed similar language of the Illinois slayer statute and the Illinois insanity law and concluded:

Put simply, an individual may not appreciate the criminality of her conduct, but still have "intentionally" and "unjustifiably" cased a death. Indeed, in this case, the judge at [the wife's] criminal trial made an explicit finding that [she] intended to murder [her husband] "without justification," despite concluding [she] was not guilty by reason of insanity."

Noting a split among state courts in analyzing the effect of "not guilty by reason of insanity" on entitlement to inheritance under other states' slayer laws, with Mississippi and New Jersey permitting recovery by a party deemed insane at the time of the murderous act, the 7th Circuit concluded that Illinois would not follow that path.  The Court concluded that the Illinois slayer statute barred this wife from recovering her husband's pension benefits.

This case is interesting for reasons other than interpretation of the federal and state laws. The case was filed as an interpleader by the Pension Fund, as the Fund had received conflicting claims for survivor benefits from the wife and the couple's 11 year old daughter.  The minor-aged daughter will now take the survivor benefits, but, the "minor child benefit" for the plan lasts only until the minor is 21.  It is perhaps an unfortunate side effect of an already sad case that without the murderous facts, the wife would have been a survivor until her death, but the innocent (and, perhaps, needy) daughter's survivor benefits will terminate after 10 years.  Should there be the option to treat any benefits payable to someone deemed "not guilty of murder by reason of insanity" as being subject to a constructive trust in favor of the next of kin?   

My thanks to always eagle-eyed attorney Thomas Murphy in Phoenix, Arizona for sending the report on the 7th Circuit case, decided January 29, 2018.  

 

April 8, 2018 in Cognitive Impairment, Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)