Wednesday, March 25, 2015
In advance of his appearance and in preparation for his focus on "Special Needs Planning," Stephen Spano, who is board certified as an elder law attorney by the National Elder Law Foundation (NELF) and whose firm concentrates its practice on elder law, estate planning and special needs planning, asked the students to watch two very interesting -- indeed inspiring -- Ted Talk videos.
Here is his first assignment -- and I look forward to seeing how he uses both videos with our students:
His second assigned video "homework" is from Aimee Mullins, who talks about "My 12 Pairs of Legs."
A new book about Social Security has been getting some buzz since its release last month. Get What's Yours: The Secrets to Maxing Out Social Security is published by Simon & Schuster and authored by Laurence J. Kotlikoff, Phillip Moeler & Paul Solman. Here is an excerpt from the publisher's website
Learn the secrets to maximizing your Social Security benefits and earn up to thousands of dollars more each year with expert advice that you can’t get anywhere else. Want to know how to navigate the forbidding maze of Social Security and emerge with the highest possible benefits? You could try reading all 2,728 rules of the Social Security system (and the thousands of explanations of these rules), but Kotlikoff, Moeller, and Solman explain Social Security benefits in an easy to understand and user-friendly style. What you don’t know can seriously hurt you: wrong decisions about which Social Security benefits to apply for cost some individual retirees tens of thousands of dollars in lost income every year. How many retirees or those nearing retirement know about such Social Security options as file and suspend (apply for benefits and then don’t take them)? Or start stop start (start benefits, stop them, then re-start them)? Or—just as important—when and how to use these techniques? ...
The New York Times ran an article about this book on March 13, 2015. The Social Security Maze and Other U.S. Mysteries discusses the book as well as the intricacies of Social Security. Those of us elder law profs who cover Social Security in our classes know how complex it can be. As the article illustrates, it is more complicated than even we thought.
Given that there are 2,728 core rules and thousands more supplements to them according to the authors, it pays, literally, to seek out a guide...
The book’s success is also, however, symptomatic of something that we take for granted but should actually disgust us: The complexity of our financial lives is so extreme that we must painstakingly manage each and every aspect of it, from government programs to investing to loyalty programs. Mr. Kotlikoff’s game has yielded large winnings for his friends and readers (and several dinners of gratitude), but the fact that gamesmanship is even necessary in the first place with our national safety net is shameful.
The lead author explained how he came to this point "[s]oon, Mr. Kotlikoff was developing a computer model for various payouts from the government program and realized that consumers might actually pay to use it....From that instinct, a service called Maximize My Social Security was born, though it wasn’t easy to do and get it right. 'We had to develop very detailed code, and the whole Social Security rule book is written in geek,” he said. “It’s impossible to understand.'” The article goes on to illustrate some complexity by using as example health savings accounts and discuss why a well-intentioned law has become so complicated.
We all know it is a complicated program, so it's great to have another resource available to help explain everything. The book is available in hard copy or as an e-book either from the publisher or other book sellers.
Friday, March 20, 2015
Have you seen the number of articles that have been released about ABLE accounts? Here's a chance to learn more: the ABLE National Resource Center has announced a free webinar on ABLE on March 26 from 2-3:30 edt. This is a collaboration between ARC, National Disability Institute, Autism Speaks, National Down Syndrome Society, and the College Plan Savings Network. According to the website, Understanding ABLE will cover the facets of ABLE, implementation updates and time for Q&A. To register, click here.
Thursday, March 19, 2015
The National Academy of Elder Law Attorneys (NAELA) recently submitted detailed formal comments to proposed VA rules affecting asset tests for eligibility for Veterans benefits. They begin:
NAELA welcomes the effort to try to make the eligibility criteria for pension and other benefits administered by VA objective and transparent, but we believe that these proposed regulations, if implemented, would cause substantial harm to wartime Veterans, their spouses, and dependents and will not solve the serious issue of unscrupulous organizations taking advantage of potential beneficiaries by selling inappropriate annuities or trusts.
In addition, we express the serious concern that the proposed rule’s 3-year look-back period and transfer of assets penalty exceed statutory authority, opening up VA to future litigation and causing additional uncertainty for Veterans and their families.
For the full NAELA submission, see here.
Wednesday, March 18, 2015
The IRS has released a notice about a proposed regulation for ABLE accounts. Notice 2015-18 notes that some states are already moving forward with setting the framework for ABLE accounts and the notice acknowledges
The Treasury Department and the Internal Revenue Service (IRS) have been advised that several state legislatures currently are in the process of enacting enabling legislation in order to ensure that their citizens may create ABLE accounts during 2015. While the Treasury Department and the IRS currently are working on section 529A guidance, it is anticipated that ABLE programs may be in operation in some states before such guidance can be issued.
Not wanting to delay the states' progress, the notice allows the states to move forward
The Treasury Department and the IRS do not want the lack of guidance to discourage states from enacting their enabling legislation and creating their ABLE programs, which could delay the ability of the families of disabled individuals or others to begin to fund ABLE accounts for those disabled individuals. Therefore, the Treasury Department and the IRS are assuring states that enact legislation creating an ABLE program in accordance with section 529A, and those individuals establishing ABLE accounts in accordance with such legislation, that they will not fail to receive the benefits of section 529A merely because the legislation or the account documents do not fully comport with the guidance when it is issued.
The notice notes that a grace period will be provided to those states where ABLE accounts are being used to make any needed changes to comply with the IRS guidance. The notice goes on to explain how the IRS expects the ABLE guidance will differ from those for 529 plans.
In particular, the Treasury Department and the IRS currently anticipate that, consistent with section 529A(e)(3), the guidance will provide that the owner of an ABLE account is the designated beneficiary of the account. In addition, the Treasury Department and the IRS currently anticipate that the section 529A guidance will provide that, with regard to the ABLE account of a designated beneficiary who is not the person with signature authority over that account, the person with signature authority over the account of the designated beneficiary may neither have nor acquire any beneficial interest in the account and must administer that account for the benefit of the designated beneficiary of that account.
Wednesday, March 11, 2015
Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates. Some of the highlights:
Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.
Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.
Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.
Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.
This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.
It will be interesting to watch this site develop.
March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Tuesday, March 10, 2015
In Draper v. Colvin, petitioner sought judicial review of SSA's denial of her application for SSI benefits. Her claim was sympathetic, as "[e]ighteen-year-old Stephany Draper suffered a traumatic brain injury in a car accident in June 2006."
In an admittedly "hard line" ruling on March 3, the 8th Circuit rejected her argument that her parents' intent to establish a valid third-party-settled special needs trust, using proceeds from a settlement of a personal injury suit on her behalf, should permit her to claim SSI.
The ruling means that over $400,000 will be treated as "available resources," thus requiring spend down before she would be eligible for benefits. The court explained (minus citations):
Admittedly, some evidence in the record supports Draper's claim that her parents intended to act in their individual capacities. Draper's parents identified themselves individually as settlors and trustees, and the trust document explicitly states that it was established “pursuant to 42 U.S.C. § 1396p(d)(4)(A)," a provision which notes that a third party, such as a parent, must create the special needs trust for the benefit of the disabled person. Nevertheless, as discussed [earlier in the opinion], other facts provide substantial evidence to support the conclusion that Draper's parents acted using the power of attorney when establishing the trust.
The Court continued on to its tough bottom line:
March 10, 2015 in Cognitive Impairment, Estates and Trusts, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
The Department of Labor (DOL) has released a new fact sheet on an amendment to the rule defining spouse under Family and Medical Leave Act (FMLA). Fact Sheet: Final Rule to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations notes that the DOL final rule was published February 25 and goes into effect on March 27, 2015. The fact sheet explains the change
In order to provide FMLA rights to all legally married same-sex couples consistent with the Windsor decision and the President’s directive, the Department subsequently issued a Final Rule on February 25, 2015, revising the regulatory definition of spouse under the FMLA. The Final Rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights. The Final Rule is effective on March 27, 2015.
The fact sheet highlights two important changes in the final rule, changing the "state of residence" to "place of celebration" in defining "spouse." As well, the definition of spouse is expanded. It "expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state."
The text of the final rule is available here.
Thursday, March 5, 2015
Neither short nor sweet? Here is a link to the written Transcript of the oral argument before the United States Supreme Court on March 4, 2015 in King v. Burwell.
Monday, March 2, 2015
The White House Council of Economic Advisors released "The Effects of Conflicted Investment Advice on Retirement Savings" in February 2015, and the report is a must-read for anyone teaching courses on aging policy.
The major focus of the analysis is on evidence of "conflicts of interest" for those advising individuals on roll-over investment of IRA accounts, but the findings undoubtedly have relevance beyond that window on retirement planning.
The decision whether to roll over one’s assets into an IRA can be confusing and the set of financial products that can be held in an IRA is vast, including savings accounts, money market accounts, mutual funds, exchange-traded funds, individual stocks and bonds, and annuities. Selecting and managing IRA investments can be a challenging and time-consuming task, frequently one of the most complex financial decisions in a person’s life, and many Americans turn to professional advisers for assistance. However, financial advisers are often compensated through fees and commissions that depend on their clients’ actions. Such fee structures generate acute conflicts of interest: the best recommendation for the saver may not be the best recommendation for the adviser’s bottom line.
The report focuses on the quantifiable cost from conflicted advice, concluding that savers receiving such advice "earn returns roughly 1 percentage point lower each year." But isn't there also a deeper cost, as the large swath of middle-income Americans, who may have justified fears of being able to safely evaluate investment risk and their investment advisors, do nothing productive with their savings?
The New York Times editorial board draws upon the White House Council's report to call for adoption of reality-based rules on fiduciary duties for the financial services industry. See NYT's "Protecting Fragile Retirement Nest Eggs."
Sunday, March 1, 2015
This week, the Supreme Court will hear oral arguments on the latest challenge to the ACA, in King v. Burwell. The New York Times offers historical perspective about an earlier journey to enact federal legislation that mandated the nation's first broad health care coverage, the Medicare program:
Lyndon B. Johnson was often derided for being egocentric, but when it came time to sign his landmark bill creating Medicare, 50 years ago this July, he graciously insisted on sharing the credit with the 81-year-old Harry Truman. At almost the last moment, Johnson decided to change the location from Washington to Truman’s presidential library in Independence, Mo.
During the ceremony, Johnson noted that in 1945, the newly installed President Truman had called for national health insurance, planting “the seeds of compassion and duty which have today flowered into care for the sick, and serenity for the fearful.” Johnson then presented his host with the nation’s first Medicare card. Deeply moved, Truman later wrote in a letter to Johnson that the ceremony was “the highlight of my post-White House days.”
For more details, read "LBJ and Truman: The Bond That Helped Forge Medicare."
For more on this week's Supreme Court challenge, from the Washington Post, see "Five Myths About King v. Burwell."
Tuesday, February 24, 2015
USA Today reports on home care workers "joining a nationwide movement" to raise wages, with rallies planned for "more than 20 cities in the next two weeks."
As described by journalist Paul Davidson,
"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging Baby Boomers over the next decade.
'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."
According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."
Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.
February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.
The hosts describe the webinar as follows:
This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance.
Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.
Here is the link for REGISTRATION. Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families.
Friday, February 20, 2015
Seasons 22 Restaurants, with locations in more than ten states nationwide, has a reputation for dining that emphasizes farm-to-table freshness, naturally seasoned cooking, and with a pledge that nothing on the menu is over 475 calories. Cutting edge, and hip.
Not so hip are the allegations by the EEOC that since 2010 the chain "engaged in a nationwide pattern or practice of age discrimination in hiring hourly workers," as described in a lawsuit filed by the EEOC this month:
"According to the lawsuit, various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees, and telling applicants that Seasons 52 'wasn't looking for old white guys.'
Age discrimination violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit Civil Action No. 1:15-cv-20561-JLK, in U.S. District Court for the Southern District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks monetary relief for applicants denied employment because of their age, the adoption of strong policies and procedures to remedy and prevent age discrimination by Seasons 52, and training on discrimination for its managers and employees.
'This case represents one example of the barriers to hiring that some job applicants face,' said Malcolm S. Medley, district director for the EEOC's Miami District Office. 'Eradicating barriers to employment opportunities is a priority of the Commission.'"
Thanks to students in the Elder Law class at George Washington Law for sharing news of this case, which includes the response by Darden (the parent company) spokesman, denying the allegations and pledging to "defend this claim vigorously."
Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Thursday, February 12, 2015
New rules from the "Administration on Aging of the Administration for Community Living." Honestly, is that the longest title for any unit in federal government? AoA and ACL operate under the Department of Health and Human Services (HHS) and recently issued new final rules governing Long-Term Care Ombudsman Programs.
Ombudsmen have traditionally had important roles to play as advocates for elderly or disabled residents in facility-based care.
The new rules complete the process of approval that commenced with proposed rules in June 2013. The effective date for the new rules -- deferred to permit implementation and training -- is July 1, 2016.
In a recent email to interested stakeholders, David Godfrey, senior attorney at the ABA's Commission on Law and Aging, comments positively on the new rules:
"Exciting news! ... A culmination of several years of collaborative work with our partners, this rule guides implementation of the portions of the Older Americans Act governing grants to states for operation of Long-Term Care (LTC) Ombudsman programs.
- Key issues this rule addresses include:
- Responsibilities of key figures in the system, including the Ombudsman and representatives of the Office of the Ombudsman;
- Responsibilities of the entities in which LTC Ombudsman programs are housed;
- Criteria for establishing consistent, person-centered approaches to resolving complaints on behalf of residents;
- Appropriate role of LTC Ombudsman programs in resolving abuse complaints; and
- Conflicts of interest: processes for identifying and remedying conflicts so that residents have access to effective, credible ombudsman services."
As noted in the introduction to the new rules, a major reason for the change is to achieve better consistency across the nation, while still preserving the "independence" that has been a hallmark of the best programs.
Wednesday, February 4, 2015
Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care. In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:
"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.
Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.
Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”
The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure. The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:
"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.
One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.
Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.
But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."
The full articles are interesting -- we will link to any future parts of this bold series.
February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 27, 2015
Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits. They write:
"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA. Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws. Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law. California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions. As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."
The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"
Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.
For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010.
This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court. On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.
Wednesday, January 14, 2015
Directly from the White House:
The first White House Conference on Aging (WHCoA) was held in 1961, with subsequent conferences in 1971, 1981, 1995, and 2005. These conferences have been viewed as catalysts for development of aging policy over the past 50 years. The conferences generated ideas and momentum prompting the establishment of and/or key improvements in many of the programs that represent America’s commitment to older Americans including: Medicare, Medicaid, Social Security, and the Older Americans Act.
The 2015 White House Conference on Aging
2015 marks the 50th anniversary of Medicare, Medicaid, and the Older Americans Act, as well as the 80th anniversary of Social Security. The 2015 White House Conference on Aging is an opportunity to recognize the importance of these key programs as well as to look ahead to the issues that will help shape the landscape for older Americans for the next decade.
In the past, conference processes were determined by statute with the form and structure directed by Congress through legislation authorizing the Older Americans Act. To date, Congress has not reauthorized the Older Americans Act, and the pending bill does not include a statutory requirement or framework for the 2015 conference.
However, the White House is committed to hosting a White House Conference on Aging in 2015 and intends to seek broad public engagement and work closely with stakeholders in developing the conference. We also plan to use web tools and social media to encourage as many older Americans as possible to participate. We are engaging with stakeholders and members of the public about the issues and ideas most important to older individuals, their caregivers, and families. We also encourage people to submit their ideas directly through the Get Involved section on this website.
Wednesday, December 31, 2014
On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute. The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs. The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.
When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before. However, the Ohio case was a new spin on that troublesome topic. According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission. One document was an admission agreement that the son signed, pledging:
“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”
The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”
The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.
The Ohio court leaves me with another question, not directly addressed in the decision. Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks? Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted? Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.
At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference.
For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary. Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident. Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.
With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!) Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice.
In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course. The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond.
Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.