Sunday, January 22, 2017

Illinois Law Professor Kaplan on "Reforming Taxation of Retirement Income"

University of Illinois Law Professor Richard Kaplan responded to my post last week, that questioned the appropriate age to compel IRA distributions, by providing a more in-depth look at the topic, via his own article, Reforming Taxation of Retirement Income.  

His recommendations include simplifying how Social Security retirement benefits are taxed, bifurcating defined contribution plan withdrawals into capital gains and ordinary income components, repealing certain exceptions to the early distribution penalty, reducing the delayed distribution penalty and adjusting the age at which it is triggered, and changing the residential gain exclusion to avoid unanticipated problems with reverse mortgages.

The 2012 Virginia Tax Review article demonstrates that increased life expectancy supports an increase to age 74 (from 71.5) as the trigger for mandatory distributions.  

Thanks, Dick!  As always, you have important analysis to share. 

January 22, 2017 in Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Retirement, Social Security, Statistics | Permalink | Comments (0)

Friday, January 20, 2017

Update on D.C. Physician-Aided Dying Law

We blogged previously that D.C.'s mayor signed the physician-aided dying bill that was then sent to Congress. According to a January 9, 2017 article in the Washington Post, Congressman plans to block D.C. law to let terminally ill patients end their lives, "Representative Jason Chaffetz (R-Utah) said ...  he’ll use rarely invoked congressional authority to block a new law passed by the D.C. Council to allow doctors to help end the lives of terminally ill patients in the city"  by the end of January.  The article notes that it's rare for Congress to block a D.C. law.   On January 12, 2017 Senator Lankford and Representative Wenstrup (Oklahoma and Ohio respectively) introduced resolutions to block the law.

Stay tuned.

January 20, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Is Age 70.5 No Longer an Appropriate Age to Compel IRA Distributions? What Sayeth Donald Trump?

Under long-standing IRS rules, IRAs and similar retirement accounts created with tax deferred income are generally subject to "required minimum distributions" when the account holder reaches age 70 and a half.  As the IRS.gov website reminds us:

  • You can withdraw more than the minimum required amount.
  • Your withdrawals will be included in your taxable income except for any part that was taxed before (your basis) or that can be received tax-free (such as qualified distributions from designated Roth accounts).

As the Wall Street Journal recently reported, as baby boomers are now reaching that magic age of 70 1/2+, there will be huge mandatory transfers of savings, creating taxable income, even if they don't actually need the retirement funds yet.

Boomers hold roughly $10 trillion in tax-deferred savings accounts, according to an estimate by Edward Shane, a managing director at Bank of New York Mellon Corp. Over the next two decades, the number of people age 70 or older is expected to nearly double to 60 million—roughly the population of Italy.

The account holders may not actually "need" the money in their early 70s, an age now often seen as "young" for retirement, and they may still be in high tax brackets, thus cancelling the original reasons for the savings and deferral.  The rules were made when average lifespans were shorter. 

On average, men and women who turned 65 in 2015 can expect to live a further 19 and 21.5 years respectively, according to the U.S. Social Security Administration’s most recent life-expectancy estimates; those post-65 expectancies are up from 15.4 and 19 years for those who turned 65 in 1985.

....[D]istributions are expected to grow exponentially over the next two decades because of a 1986 change to federal law designed to prevent the loss of tax revenue. Congress said savers who turn 70½ have to start taking withdrawals from tax-deferred savings plans or face a penalty. Specifically, retirees who turn 70½ have until April of the following calendar year to pull roughly 3.65% from their IRA and 401(k) funds, subject to slight differences in the way the funds are treated by the Internal Revenue Service. Then they must withdraw an increasing portion of their assets every year based on IRS formulas. The rules don’t apply to defined-benefit pensions, where retirees get automatic distributions.

There is a 50% penalty for failure to make required minimum withdrawals.  And not all retirees are aware of the consequences of failing to make with withdrawals, especially when accounts were created originally by a spouse who is no longer alive or is unable to manage the account personally. From the Wall Street Journal article:

Bronwyn Shone, a financial adviser in Pleasanton, Calif., said many of her clients aren’t aware of their legal obligation to take distributions. “I think some people thought they could let the money grow tax-deferred forever,” she said.

Certainly the federal government wants -- and an argument can certainly be made that it "needs" -- more tax revenues, but if the goal of the permitted deferral is to encourage saving for the the "real" needs of retirement, which can include disability, health care, long-term care, and other "late in aging" needs, is it still realistic to set the mandatory threshold for withdrawals at age 70.5?  For example, Donald Trump is just today commencing his "new job" at age 70 and a half, and yet he could be subject to the RMDs for any IRAs. Maybe this is a financial issue that might interest the new Trump Administration? 

For more, read Pulling Retirement Cash, but Not by Choice, by WSJ reporters V. Monga and S. Krouse (paywall protected article from 1/16/17).

January 20, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0)

Tuesday, January 17, 2017

UCLA Prof. Allison Hoffman on "Reimagining the Risk of Long-Term Care"

With the new Presidential administration ahead, many of us are asking what government policies or programs will be "re-imagined."  With changes on the horizon, an especially interesting perspective on long-term care is offered by UCLA Law Professor Allison Hoffman with her recent article, "Reimagining the Risk of Long-Term Care,"  published in the Yale Journal of Health Policy, Law & Ethics. From the abstract:

While attempting to mitigate care-recipient risk, in fact, the law has steadily expanded next-friend risk, by reinforcing a structure of long-term care that relies heavily on informal caregiving. Millions of informal caregivers face financial and nonmonetary harms that deeply threaten their own long-term security. These harms are disproportionately experienced by people who are already vulnerable--women, minorities, and the poor. Scholars and policymakers have catalogued and critiqued these costs but treat them as an unfortunate byproduct of an inevitable system of informal care.
 
 
This Article argues that if we, instead, understand becoming responsible for the care of another as a social risk--just as we see the chance that a person will need long-term care as a risk--it could fundamentally shift the way we approach long-term care policy.
 
Professor Hoffman examines various ways in which society expects third parties, including but not limited to family members as "next friends," to provide unpaid assistance and/or out-of-pocket dollars to disabled adults or seniors needing help.  She writes, for example, about filial support laws used sporadically to compel certain family members to finance care.  She observes that often, without direct personal experience, society members are unaware of the real costs of long-term care, both financially and emotionally, writing: 
 
As one informal caregiver and scholar described: “I feel abandoned by a health care system that commits resources and rewards to rescuing the injured and the ill but then consigns such patients and their families to the black hole of chronic ‘custodial’ care.” What next friends do for others is herculean, both in terms of the time spent and the ways that they offer assistance.
 
Recommended reading for the new year.  

January 17, 2017 in Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Sunday, January 15, 2017

Mark Your Calendar-DOJ webinar

Do you know about the DOJ Elder Justice Initiative? If not, then this webinar is for you. Even if you do know about it, still register for this webinar!  According to the email I received,

On January 26, 2017, the Elder Justice Initiative will be hosting a webinar to highlight resources and information available on the Elder Justice Website. 

This webinar will be hosted by Susan Lynch and Sid Stahl and will introduce you to the Department of Justice’s Elder Justice Website and will help you to navigate the many tools and resources available on DOJ’s website for elder abuse prosecutors, law enforcement, victim advocates, victims, families, caregivers, and elder abuse researchers.  These tools can help you find assistance when in need, get involved in combatting elder abuse and financial exploitation, and educate you on elder justice programs operating at the federal, state, and local levels. 

Registration opens the week before the webinar.

January 15, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, Webinars | Permalink | Comments (0)

Wednesday, January 11, 2017

"The Aging Brain" as a Focus for Collaborative Analysis and Research

I'm much overdue in writing about a terrific, recent workshop at Arizona State University's Sandra Day O'Connor College of Law on "The Aging Brain." For me it was an ideal gathering of disciplines, including experts in neurology, psychology, health care (including palliative care and self-directed aid-in-dying), the judiciary, and both practitioners and academics in law (not limited to elder law).  Even more exciting, that full day workshop (11/18/15) will lead into a public conference, planned for fall 2017.  

Key workshop moments included:

  • Preview of a potentially ground-breaking study of early-onset Alzheimer's Disease (AD) centered on a family cluster in the country of Columbia with a genetic marker for the disease and a high incidence of onset.  By "early onset," we're talking family members in their 40s.  The hope is that by studying the bio-markers in this family, that not only early onset but later-in-life onset will be better understood. Eric Reiman, with professional affiliations with Banner Health, Arizona State University and University of Arizona, spoke at the workshop, and, as it turned out, he was also featured on a CBS 60 Minutes program aired a short time later about the family-based study.  Here's a link to the CBS transcript and video for the 60 Minutes program on "The Alzheimer's Laboratory."  
  • Thoughtful discussion of the ethical, legal and social implications of dementia, including the fact that self-directed aid-in-dying is not lawful for individuals with cognitive impairment. Hank Greely from Stanford University Law and Medical Schools, and Professor Betsy Grey for ASU's Sandra Day O'Connor College of Law led discussions on key issues.  As biomarkers linked to AD are identified, would "you" want to know the outcome of personal testing?  Would knowing you have a genetic link to AD change your life before onset? 
  • Overview of recent developments in "healthy" brain aging and so-called "anti-aging" treatments or medications, with important questions raised about whether there is respected science behind the latest announcement of "breakthroughs." Cynthia Stonnington from the Mayo Clinic and Gary Marchant from ASU talked about the science (or lack thereof), and Gary raised provocative points about the role of the FDA in drug approvals, tracking histories for so-called off label uses for drugs such as metformin and rapamycin.  

I very much appreciate the opportunity to participate in this program, with special thanks to Betsy Grey and federal Judge Roslyn Silver for making this possible.  I've also enjoyed serving as occasional guest in Judge Silver's two-semester Law and Science workshop with ASU law students. Thank you! For more on the Aging Brain programming at ASU, see here.    

January 11, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Science | Permalink | Comments (0)

Tuesday, January 10, 2017

Medicare Overpayments

Kaiser Health News ran a story last week on the failure of CMS to recover significant overpayments from some Medicare Advantage plans. Medicare Failed To Recover Up To $125 Million In Overpayments, Records Show explains

An initial round of audits found that Medicare had potentially overpaid five of the health plans $128 million in 2007 alone, according to confidential government documents released recently in response to a public records request and lawsuit.

But officials never recovered most of that money. Under intense pressure from the health insurance industry, the Centers for Medicare and Medicaid Services quietly backed off their repayment demands and settled the audits in 2012 for just under $3.4 million — shortchanging taxpayers by up to $125 million in possible overcharges just for 2007.

The story reports the overpayments occur for various reasons, including billing errors and from "overcharge[ing] Medicare, often by overstating the severity of medical conditions...."  The story reports on CMS audits of some health plans, events that led up to the settlement of the overpayment claims and a May, 2016 GAO report.

January 10, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Oregon Supreme Court Rejects Medicaid Estate Recovery for Asset Transfers between Spouses

In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014).  The high court concluded:

Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.

Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case.  His firm's Blog further reports on the effects of the final ruling in Oregon:

"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."

January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 9, 2017

Social Security Full Retirement Age in 2017

Social Security's blog, Social Security Matters, posted the full retirement age info for 2017. 2017 Brings New Changes to Full Retirement Age explains that for those between 1955-1956, full retirement age is 66 and 2 months.  The post also explains what the increase in full retirement age means to benefits: "[a]s the full retirement age continues to increase, there are greater reductions in benefits if you claim them before you reach full retirement age.  For example, if you apply for benefits in 2017 at age 62, your monthly benefit amount will be reduced nearly 26 percent." The blog also offers tips to those who are contemplating retirement along with helpful links.

January 9, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (0)

Diving Deeper into Approval of Short-Term Annuities in Medicaid Planning

3L Villanova Law Student Jennifer A. Ward has an interesting analysis of the Third Circuit's decision in Zahner v. Sec'y Pa Dept. of Human Servs., 802 F.3d 497 (3d Cir. 2015), published in a recent issue of the Villanova Law Review.  She begins with a summary of the Zahner decision and an outline of her analysis:

[T]he Third Circuit examined whether short-term annuities, a specific instrument used in Medicaid planning, qualified for the DRA's safe harbor provision. If so, assets used to purchase short-term annuities would be sheltered from factoring into individuals' eligibility for Medicaid. Holding that short-term annuities can qualify for protection, the Third Circuit's decision signifies that the DRA did not completely foreclose the “use of short-term annuities in Medicaid planning.”
 
This Casebrief argues that the Third Circuit's Zahner decision is a win for elder law attorneys and their clients, as it solidifies the viability of the use of short-term annuities in Medicaid planning. Part II examines how individuals take part in Medicaid planning, including a discussion of the DRA and the use of annuities in planning. Part III presents the facts of Zahner and reviews the Third Circuit's analysis. Part IV analyzes the Third Circuit's decision to approve the use of short-term annuities. Part V advises elder law practitioners on the use of short-term annuities going forward. Part VI concludes by discussing the long-term viability of short-term annuities.
 
The author recognizes the potential for Congress to change the outcome of the Zahner ruling: 
 
After Zahner, elder law practitioners are free to use short-term annuities while guiding their clients through the Medicaid planning process. The Third Circuit will not bar the use of qualified short-term annuities in Medicaid planning, instead leaving any change in policy to Congress. Therefore, until Congress acts, short-term annuities are a viable planning tool in the Third Circuit for the foreseeable future.For people who wish to leave assets to loved ones, Zahner presents good news. Rather than causing people to exhaust their savings on long-term care, Zahner provides individuals greater ability to protect resources through Medicaid planning.
 
The title of the article is Doctor's Orders: The Third Circuit Approves Short Term Annuities As a Viable Planning Tool, and is available through subscription on Westlaw and Lexis and appears to be forthcoming on a digital commons platform via the Villanova Law Review. 

January 9, 2017 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Thursday, December 29, 2016

Revised Nursing Home Regs-Resources Part II

The National Consumer Voice for Quality Long-Term Care has issued its second summary of the revised nursing home regulations. Summary of Key Changes in the Rule-Part II is a 19 page summary of phase 1 that covers changes to the resident assessment, comprehensive person-centered care planning, quality of life, quality of care, doctors and nursing services, behavioral health services, pharmacy services, lab, diagnostic and radiology services, dental, nutrition, and specialized rehab services, administration (the section that includes the ban on pre-dispute arbitration agreements), quality assurance, physical environment, controlling infection, and training (which includes training on recognizing, reporting and preventing abuse, neglect and exploitation). Read this, bookmark it, print it and save it!

December 29, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink

Wednesday, December 28, 2016

Student Loans and Social Security

Imagine a person who has at last retired, is drawing Social Security and still has outstanding student loans. Farfetched? Not at all. And, in fact, the GAO issued a report noting how Social Security checks are being reduced to repay these student loans. The Wall Street Journal explains about the report in the article, Social Security Checks Are Being Reduced for Unpaid Student Debt:

The report highlights the sharp growth in baby boomers entering retirement with student debt, most of it borrowed years ago to cover their own educations but some used to pay for their children’s schooling. Overall, about seven million Americans age 50 and older owed about $205 billion in federal student debt last year. About 1 in 3 were in default, raising the likelihood that garnishments will increase as more boomers retire.

Student loan debt isn't dischargeable in bankruptcy, but the effect of the government's actions is to leave some Social Security recipients below the poverty level.  "[C]onsumer advocates and some congressional Democrats say the government’s tactics have become too aggressive, targeting many borrowers who are destitute and have no hope of repaying. Most Social Security recipients rely on their checks as their primary source of income, other research shows."

The GAO report, Social Security Offsets: Improvements to Program Design Could Better Assist Older Student Loan Borrowers with Obtaining Permitted Relief offers the following findings

 Older borrowers (age 50 and older) who default on federal student loans and must repay that debt with a portion of their Social Security benefits often have held their loans for decades and had about 15 percent of their benefit payment withheld. This withholding is called an offset. GAO’s analysis of characteristics of student loan debt using data from the Departments of Education (Education), Treasury, and the Social Security Administration (SSA) from fiscal years 2001-2015 showed that for older borrowers subject to offset for the first time, about 43 percent had held their student loans for 20 years or more. In addition, three-quarters of these older borrowers had taken loans only for their own education, and most owed less than $10,000 at the time of their initial offset. Older borrowers had a typical monthly offset that was slightly more than $140, and almost half of them were subject to the maximum possible reduction, equivalent to 15 percent of their Social Security benefit. In fiscal year 2015, more than half of the almost 114,000 older borrowers who had such offsets were receiving Social Security disability benefits rather than Social Security retirement income.

In fiscal year 2015, Education collected about $4.5 billion on defaulted student loan debt, of which about $171 million—less than 10 percent—was collected through Social Security offsets. More than one-third of older borrowers remained in default 5 years after becoming subject to offset, and some saw their loan balances increase over time despite offsets. However, nearly one-third of older borrowers were able to pay off their loans or cancel their debt by obtaining relief through a process known as a total and permanent disability (TPD) discharge, which is available to borrowers with a disability that is not expected to improve.

GAO identified a number of effects on older borrowers resulting from the design of the offset program and associated options for relief from offset. First, older borrowers subject to offsets increasingly receive benefits below the federal poverty guideline. Specifically, many older borrowers subject to offset have their Social Security benefits reduced below the federal poverty guideline because the threshold to protect benefits—implemented by regulation in 1998—is not adjusted for costs of living (see figure below). In addition, borrowers who have a total and permanent disability may be eligible for a TPD discharge, but they must comply with annual documentation requirements that are not clearly and prominently stated. If annual documentation to verify income is not submitted, a loan initially approved for a TPD discharge can be reinstated and offsets resume.

A pdf of the 90 page report is available here. An accompanying podcast is available here.

December 28, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Social Security | Permalink | Comments (0)

Monday, December 26, 2016

Oregon Estate Recovery Rules Held Invalid

Attorney Tim Nay ( NAELA's first president by the way), recently posted on listservs about the Oregon Supreme Court's opinion on the state Medicaid agency's rules regarding estate recovery.  The Oregon Supreme Court, in Nay v. Department of Human Services, affirmed the court of appeals decision that the administrative rules were invalid:

In 2008, the department amended its administrative rules regarding the scope of that recovery. The amended rules allow the department to recover the payments from assets that the recipient had  transferred to a spouse up to five years before a person applies for Medicaid. Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals. The Court of Appeals agreed with petitioner that the amendments were invalid ... and the department sought review. As we will explain, we conclude that the rule amendments are invalid under ORS 183.400(4)(b) because they exceed the department’s statutory authority. Accordingly, we affirm the Court of Appeals. (citations omitted).

After reviewing state family law and probate law (elective share) and the arguments advanced by the Department of Human Services, the Oregon Supreme Court concluded

The department promulgated rule amendments that allow it to obtain estate recovery from transfers made to a spouse within the five years before a person applies for Medicaid. Our standard for judicial review is whether the department exceeded its statutory authority ..., and more specifically whether the rule amendments depart from a legal standard expressed or implied in the particular law being administered.... Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department’s statutory authority..... The Court of Appeals correctly held the rule amendments to be invalid. (citations omitted).

The opinion is available here.

Congrats Tim and thanks for letting us know!

December 26, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, December 20, 2016

Rep Payee Interdisciplinary Training

Social Security has released a video series for Rep Payees that is an interdisciplinary training "to educate individuals and organizations about the roles and responsibilities of serving as a representative payee, elder abuse and financial exploitation, effective ways to monitor and safely conduct business with the banking community, and ways to recognize the changes in decisional capacity among vulnerable adults and seniors."  There are 5 videos (1 of which is a short introduction) with the 4 training videos running in length from 15-35 minutes, depending on the topic. The topics include technical training as a rep payeerecognizing financial exploitation and vulnerable adult abuse, strategies for dealing with the financial community and changes in a beneficiary's decisional capacity. A transcript is available in addition to the video.

 

December 20, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Social Security | Permalink | Comments (0)

Monday, December 19, 2016

FAQ on Wandering from CMS

Last week CMS issued an FAQ for Medicaid beneficiaries in the community who wander. FAQs concerning Medicaid Beneficiaries in Home and Community-Based Settings who Exhibit Unsafe Wandering or Exit-Seeking Behavior offers 4 FAQs. Each FAQ offers suggestions for providers. For example, FAQ 3 offers suggestions for staffing, "environmental design" and activities while FAQ 4 offers actions that the providers can take, such as "[e]nsuring that individuals have opportunities to visit with and go out with family members and friends, when they want this."  The 4 FAQs are:

  1.  How can residential and adult day settings comply with the HCBS settings requirements while serving Medicaid beneficiaries who may wander or exit-seek unsafely?

  2. Can provider-controlled settings with Memory Care Units with controlled-egress comply with the new Medicaid HCBS settings rule? If so, what are the requirements for such settings?

  3. What are some promising practices that HCBS settings use to serve people who are at risk of unsafe wandering or exit-seeking?

  4. How can residential and adult day settings promote community integration for people who are at risk of unsafe wandering or exit-seeking? What are some examples of promising practices for implementing the community integration requirements of the regulations defining home and community-based settings and simultaneously assuring the safety of individuals who exhibit these behaviors?

     

 

 

December 19, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Thursday, December 15, 2016

Pot Popular with Boomers?

Kaiser Health News (KHN) reported on a study about use of pot by Boomers. Seniors Increasingly Getting High, Study Shows explains the results of a recent study:

Baby boomers are getting high in increasing numbers, reflecting growing acceptance of the drug as treatment for various medical conditions, according to a study published Monday in the journal Addiction.

The findings reveal overall use among the 50-and-older study group increased “significantly” from 2006 to 2013. Marijuana users peaked between ages 50 to 64, then declined among the 65-and-over crowd.

The article notes that the researchers call for more study regarding the long-term effects of the use of pot and that health care providers should be careful to not assume that an elder doesn't use drugs: "Joseph Palamar, a professor at the NYU medical school and a co-author of the study, said the findings reinforce the need for research and a call for providers to screen the elderly for drug use... 'They shouldn’t just assume that someone is not a drug user because they’re older,” Palamar said."

The article discusses the disparity of approaches between states that have legalized marijuana use and the federal government position. 

The push and pull between state and federal governments has resulted in varying degrees of legality across the United States. Palamar says this variation places populations at risk of unknowingly breaking the law and getting arrested for drug possession. The issue poses one of the biggest public health concerns associated with marijuana, Palamar says.

But unlike the marijuana of their youth, seniors living in states that legalized marijuana for medicinal use now can access a drug that has been tested for quality and purity, said Paul Armentano deputy director of NORML, a non-profit group advocating for marijuana legalization. Additionally, the plant is prescribed to manage diseases that usually strike in older age, pointing to an increasing desire to take a medication that has less side effects than traditional prescription drugs.

The full article, Demographic trends among older cannabis users in the United States, 2006–13 is available for a fee here.  The abstract explains

Background and Aims

The ageing US population is providing an unprecedented population of older adults who use recreational drugs. We aimed to estimate the trends in the prevalence of past-year use of cannabis, describe the patterns and attitudes and determine correlates of cannabis use by adults age 50 years and older....

Findings

The prevalence of past-year cannabis use among adults aged ≥ 50 increased significantly from 2006/07 to 2012/13, with a 57.8% relative increase for adults aged 50–64 (linear trend P < 0.001) and a 250% relative increase for those aged ≥ 65 (linear trend P = 0.002). When combining data from 2006 to 2013, 6.9% of older cannabis users met criteria for cannabis abuse or dependence, and the majority of the sample reported perceiving no risk or slight risk associated with monthly cannabis use (85.3%) or weekly use (79%). Past-year users were more likely to be younger, male, non-Hispanic, not have multiple chronic conditions and use tobacco, alcohol or other drugs compared with non-past-year cannabis users.

Conclusions

The prevalence of cannabis use has increased significantly in recent years among US adults aged ≥ 50 years.

December 15, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, December 13, 2016

GAO: Nursing Home Compare Website Needs Improvement

The GAO recently issued a report on the nursing home compare website.

Here are the highlights:

 GAO found that the Centers for Medicare & Medicaid Services (CMS) collects information on the use of the Nursing Home Compare website, which was developed with the goal of assisting consumers in finding and comparing nursing home quality information. CMS uses three standard mechanisms for collecting website information—website analytics, website user surveys, and website usability tests. These mechanisms have helped identify potential improvements to the website, such as adding information explaining how to use the website. However, GAO found that CMS does not have a systematic process for prioritizing and implementing these potential improvements. Rather, CMS officials described a fragmented approach to reviewing and implementing recommended website changes. Federal internal control standards require management to evaluate appropriate actions for improvement. Without having an established process to evaluate and prioritize implementation of improvements, CMS cannot ensure that it is fully meeting its goals for the website.

GAO also found that several factors inhibit the ability of CMS’s Five-Star Quality Rating System (Five-Star System) to help consumers understand nursing home quality and choose between high- and low- performing homes, which is CMS’s primary goal for the system. For example, the ratings were not designed to compare nursing homes nationally, limiting the ability of the rating system to help consumers who live near state borders or have multistate options. In addition, the Five-Star System does not include consumer satisfaction survey information, leaving consumers to make nursing home decisions without this important information. As a result, CMS cannot ensure that the Five-Star System fully meets its primary goal.

The full report is available here.

December 13, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, December 12, 2016

Medicare Observation Notice Form

You will recall the issues with Medicare patients on observation status, rather than having been admitted into the hospital. The NOTICE Act was intended to ensure patients knew whether they had been admitted or were on observation status.  CMS has released the observation status notice, known as MOON. The fact sheet explains

Enacted August 6, 2015, the Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act) requires hospitals and Critical Access Hospitals (CAH) to provide notification to individuals receiving observation services as outpatients for more than 24 hours explaining the status of the individual as an outpatient, not an inpatient, and the implications of such status. 

The  notice, CMS-10611, is available here.  (click on the link to open the zip file).

December 12, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Thursday, December 8, 2016

New Brief: A Closer Look at the Revised Nursing Facility Regulations

The National Consumer Voice for Quality Long-Term Care, the Center for Medicare Advocacy and Justice in Aging have released the first in a series of briefs regarding the changes to the Nursing Facility regulations.  This first brief focuses on Assessment, Care Planning & Discharge Planning.

Here is the executive summary:

Revised nursing facility regulations broadly affect facility practices, including assessment care planning and discharge planning. The revised assessment process places greater emphasis on a resident’s preferences, goals, and life history. Regarding care planning, a facility must develop and implement a baseline care plan within 48 hours of a resident’s admission, with the comprehensive care plan to be developed subsequently. The care planning team has been expanded to require (among other things) participation by a nurse aide with responsibility for the resident, and the facility must facilitate resident participation. Care planning should include planning for discharge, and the facility must document any determination that discharge to the community is not feasible.

A facility now will have to complete an assessment as well as a baseline care plan that has to be done within 48 hours from admission, as well as a "'comprehensive, person-centered care plan; for each resident within seven days of the initial assessment."

As far as effective dates, the brief explains that "[t]he revised regulations’ assessment provisions are effective on November 28, 2016. Most care planning and discharge planning provisions will be effective on the same date, except for provisions relating to baseline care plans (11/28/2017) and trauma informed care (11/28/2019)."

Be sure to bookmark this brief (or save it to your important documents folder) and keep an eye out for the subsequent briefs. Kudos to these 3 amazing organizations!

 

December 8, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

21st Century Cures Act

The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature.  There are two specific provisions in the Cures Act that bear mention:

The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.

Section 5007 provides:

SEC. 5007. Fairness in Medicaid supplemental needs trusts.

(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting the individual, after for the benefit of such individual by.

(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.

Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"

The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:

“(1) Notice of the proposed adverse determination and the supporting evidence.

“(2) An opportunity to request a hearing.

“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.

“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.

The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."

The President is expected to sign the bill soon. More to follow.

December 8, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Veterans | Permalink | Comments (0)