Monday, June 16, 2014

Why Expanded Opportunities for Legal Immigration Are Important to Long-Term Care Providers...

Recently Artis Senior Living CEO Don Feltman joined CEOs from 10 other high profile corporate employers, such as Coca-Cola, Tyson Foods, and Loews Hotels & Resorts, to urge Congress to fix the "broken" immigration system, to permit expanded lawful avenues for foreign-born workers in the U.S.   In their June 10 letter, they write in part:  

All our companies rely on legal immigrants working alongside Americans to keep our businesses growing and contributing to the economy. This is a reality driven by demographics. In 1950, more than half of America’s workers were high school dropouts willing to do physically demanding, low-skilled work. Today, the figure is less than 5 percent. But our businesses still need less-skilled workers – and the need will only grow in years ahead. Baby boomers are retiring: 10,000 older workers are leaving the workforce every day. And after a long downturn, most of our operations are expanding and looking to hire workers.

 

The problem: there is virtually no legal way for less-skilled foreigners without family in the U.S. to enter the country and work in year-round jobs – effectively no temporary or permanent visas available for non-seasonal workers. Congress has an obligation to fill this gap – we need a visa program for less-skilled foreign workers seeking year-round jobs. Employers should have to try to hire Americans first. But if they can’t find enough U.S. workers, they should be able to hire foreign workers quickly, easily and legally.

June 16, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (1) | TrackBack (0)

Monday, June 9, 2014

What is the Role of the Judiciary in Settlement of Medicare Provider-Fraud Cases?

Last week, the Second Circuit Court of Appeals ruled that a district court's rejection of a proposed Securities and Exchange Commission (SEC) settlement for $285 million -- because of the absence of any admissions by defendant Citigroup -- was improper.  In SEC v. Citigroup Global Markets, a case that arose from investigations into fraud following the financial industries meltdown, the Second Circuit observed that while the court has an obligation to review consent degrees to determine generally the "legality" of the terms and may consider whether the settlement is "fair and reasonable, to demand admissions as a condition of settlement goes too far. 

The Second Circuit said, "It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the 'truth' of the allegations against a settling party as a condition for approving the consent decrees.... Trials are primarily about the truth. Consent decrees are primarily about pragmatism.... Consent decrees provide parties with a means to manage risk." 

In cases where injunctive relief is part of the settlement, the Second Circuit said the trial court is permitted to analyze the enforceability of the terms, as a matter of "public interest." 

The Wall Street Journal, in reporting on the June 4 decision, observed that the decision "eases pressure" on prosecutors and regulators "to exact admissions of wrongdoing in settlements with companies."

After reading the SEC-related decision, it would seem the same reasoning would govern settlements of federal Medicare and Medicaid fraud suits, including whistleblower cases, such as the multi-million dollar settlements in recent months involving nursing home care, pharmaceutical sales, and hospice, thus explaining how millions in de facto fines often involve no admissions of wrongdoing. 

Or as I sometimes describe such agreements to settle, defendants must decide whether they can live with the financial effect of the monetary terms, and must promise merely to never do again what they say they never did before. 

But I worry, will customers -- which in Medicare and Medicaid cases, usually means seniors and disabled persons -- be the ones who pay the downstream price of the settlement, especially without clear admissions of wrongdoing in the past?  

June 9, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

Center for Medicare Advocacy files suit against HHS for Medicare appeals problems

The Center for Medicare Advocacy’s 'Rubber Stamp' suit highlights the fact that 98% of Medicare appeals are denied at the first two levels of review

June 5, 2014 – The Center for Medicare Advocacy filed a complaint in United States District Court in Connecticut yesterday against Kathleen Sebelius, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action, and the four named plaintiffs represent thousands of Medicare beneficiaries in Connecticut who cannot get a meaningful review of their case, and instead, receive an initial denial of coverage that is essentially “rubber stamped” at both the Redetermination and Reconsideration levels. The problem persists throughout the country.

Available information indicates that the combined denial rate for home health care coverage (that the plaintiffs in this case were denied) at the first two levels of review is about 98%.  However, beneficiaries must complete those levels before they can get a hearing with an Administrative Law Judge (ALJ), which provides the first real opportunity for a meaningful evaluation of a claim.

"Older people and people with disabilities are going without necessary care because they’re being wrongly denied coverage and either drop out of the years-long appeals process, waiting for a hearing, or impoverish themselves to pay for care,” said Gill Deford, Litigation Director at the Center for Medicare Advocacy. “The sheer number of beneficiaries who are forced to deal with this time-consuming, meaningless appeals structure compelled us to take action to seek meaningful reviews earlier in the appeals process."

The denial rate at Redetermination and Reconsideration has been increasing in recent years, coinciding with the implementation of a new administrative review process for "traditional" Medicare (Parts A and B). While the new system was intended to make the process more efficient and user-friendly, the actual effect has been to deny beneficiaries an efficient and meaningful review of their claims, requiring them to take claims to the third level of review, an ALJ hearing.

"Most beneficiaries don’t have the resources, time or support to take their claims all the way to an Administrative Law Judge, making the first two levels of review vitally important,” said Judith Stein, Executive Director of the Center for Medicare Advocacy. "'Rubber-stamping' appeals deprives a huge number of people a legitimate review process and harms those who depend on Medicare coverage for critical health care and to maintain their quality of life."

To speak with a representative of the Center for Medicare Advocacy about this case, please contact Lauren Weybrew at lweybrew@douglasgould.com

June 6, 2014 in Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)

Sunday, June 1, 2014

Minnesota News: Court order approves Jensen Compehensive Plan of Action

On March 12, 2014, U.S. District Judge Donovan Frank of the District of Minnesota issued a court order adopting and approving the Comprehensive Plan of Action for the Jensen Settlement Agreement. The agreement was the result of a lawsuit filed against DHS in 2009 alleging that residents of the former Minnesota Extended Treatment Options (METO) program were unlawfully and unconstitutionally secluded and restrained. The Comprehensive Plan of Action outlines the path that the department will take to come into compliance with the terms of the agreement.

The Minensota DHS says that it is actively working to implement the plan and other mandates of the federal court, including departmentwide training on the agreement and plan.

The Jensen Settlement Agreement, approved Dec. 5, 2011, allowed the department and the plaintifs to resolve the claims in a mutually agreeable manner.

More information is on the Jensen Settlement page on DHS' website.

 

June 1, 2014 in Cognitive Impairment, Discrimination, Federal Cases, Federal Statutes/Regulations | Permalink | TrackBack (0)

Saturday, May 31, 2014

Representatives introduce Medicare Transitional Care Act

Representatives Earl Blumenauer (OR-03) and Tom Petri (WI-06) ihave recently ntroduced the bipartisan Medicare Transitional Care Act, which will support and coordinate care for Medicare beneficiaries as they move from the hospital setting to their homes or other care setting, and ensure that appropriate follow-up care is provided during this vulnerable period.  The benefit is flexible, supporting a number of much-needed care models including improved assessment, planning, medications management, movement between care levels, and coordination of support services such as meals and medical equipment.
 
“Transitions from hospital to home can be complicated and risky, especially for individuals with multiple chronic illnesses,” said Blumenauer. “There’s a lot of confusion and uncertainty over instructions, medications, and prognosis. Our bill will support people coming out of the hospital so they don’t just wind up right back in, which is expensive and dangerous.”
 
“It doesn’t make sense to have a program that only provides part of the care Medicare patients need just to have them become sick again as soon as they leave the hospital,” said Petri.  “Providing greater support for Medicare patients as they transition from the hospital back home would improve their health and quality of life while saving taxpayers’ money.”
 
“As providers seek to improve patient outcomes through more coordinated care, Congress must continue to look for effective policies that address gaps in care for our most vulnerable patients, and improving transitions between care settings is critical to that effort,” said National Transitions of Care Coalition Executive Director, Cheri Lattimer. “The Medicare Transitional Care Act puts in place necessary infrastructure and incentives to foster care transition interventions, with collaborative team approaches that have proven successful, which will lead to better health outcomes for beneficiaries and offer real cost savings for patients, the health care system and taxpayers.”
 
Researchers with the Robert Wood Johnson Foundation have estimated that inadequate care coordination, including inadequate management of care transitions, was responsible for $25 to $45 billion in wasteful spending in 2011 through avoidable complications and unnecessary hospital readmissions.
 
The Medicare Transitional Care Act is supported by organizations including The National Transitions of Care Coalition, American Society of Aging, Caregiver Action Network, Case Management Society of America, Society for Post-Acute and Long-Term Care Medicine, Hudson Health Plan, Rush University Medical Center, and Sanofi.
 

May 31, 2014 in Federal Statutes/Regulations, Medicare | Permalink | TrackBack (0)

Friday, May 30, 2014

ACL issues guidance memo implementing Windsor

In May 2014, the Administration for Community Living (ACL), an agency within the Department of Health and Human Services,  issued guidance applicable to all ACL grantees concerning the federal government's policy on same-sex marriages following the Supreme Court Decision in  United States v. Windsor, 133 S. Ct. 2675 (2013).  The Court in Windsor found that Section 3 of the Defense of Marriage Act (DOMA) impermissibly discriminates against same-sex couples who have been lawfully married in accordance with the laws of a given state.
According to its guidance, the policy of the ACL is to treat same-sex marriages the same as opposite sex marriages to the "extent reasonably possible."  In this regard ACL sets out the following:

  • ACL programs should recognize as family members individuals of the same sex who are lawfully married under the law of a state, territory, or foreign jurisdiction. This policy applies based on the jurisdiction in which the marriage was celebrated.
  • ACL will recognize the marriage, regardless of whether the individuals are domiciled or reside in a state or territory that does not recognize the marriage.
  • When the ACL guidance discusses individuals of the same sex who are "legally married," the intention is to include all legal marriages, regardless of the individuals' current domicile or residence.

Programs affected by the ACL policy include (a) The Administration on Intellectual and Developmental Disabilities; (b) State Protection and Advocacy Systems under the Developmental Disabilities Act ("DD Act"), including their governing boards and advisory councils; (c) the National Network of University Centers for Excellence in Developmental Disabilities; (d) Projects of National Significance, including projects made through grants, contracts, or cooperative agreements; (e)  Help America Vote Act Protection and Advocacy Systems; (f) Home Delivered Nutrition Services; and (g)  the National Family Caregiver Support Program,
To the extent necessary, ACL states that it will revise its grant terms and conditions to incorporate its guidance.  The ACL's full Windsor-related guidance is available at: http://www.acl.gov/Funding_Opportunities/Grantee_Info/docs/
Community_Living_Guidance.pdf
.

May 30, 2014 in Federal Statutes/Regulations, Other | Permalink | TrackBack (0)

Tuesday, May 20, 2014

Justice Dep't Announces ADA Title II Settlement with LSAC

The Justice Department filed a joint motion today for entry of a landmark consent decree to resolve allegations that the Law School Admission Council (LSAC) engaged in widespread and systemic discrimination in violation of the Americans with Disabilities Act (ADA). Under the proposed consent decree, LSAC will pay $7.73 million in penalties and damages to compensate well over 6,000 individuals nationwide who applied for testing accommodations on the Law School Admission Test (LSAT) over the past five years. The decree also requires comprehensive reforms to LSAC’s policies and ends its practice of “flagging,” or annotating, LSAT score reports for test takers with disabilities who receive extended time as an accommodation. These reforms will impact tens of thousands of test takers with disabilities for years to come.

More here.

May 20, 2014 in Discrimination, Federal Statutes/Regulations, Legal Practice/Practice Management | Permalink | TrackBack (0)

Friday, May 16, 2014

U.S. Equal Employment Opportunity Commission Seeks Public Input on Regulations Requiring Federal Agencies to Be ‘Model Employers’ of Individuals with Disabilities

The U.S. Equal Employment Opportunity Commission announced today that it is inviting public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973, a law that governs employment of individuals with disabilities by the federal government. 

Responses to this Advance Notice of Proposed Rulemaking must be submitted by 5:00 pm EDT on Monday, July 14, 2014.

May 16, 2014 in Discrimination, Federal Statutes/Regulations | Permalink | TrackBack (0)

Wednesday, May 14, 2014

Frolik & Kaplan: "Elder Law in a Nutshell" (6th Edition!)

It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly  complicating this little task is the fact that I count both authors as friends and mentors.

The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.")  And as with fine wine, this book, now its 6th edition, becomes more valuable with age.  This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series.  Presented in the book are introductions to the following core topics:

  • Ethical Considerations in Dealing with Older Clients
  • Health Care Decision Making
  • Medicare and Medigap
  • Medicaid
  • Long-Term Care Insurance
  • Nursing Homes, Board and Care Homes, and Assisted Living Facilities
  • Housing Alternatives & Options (including Reverse Mortgages)
  • Guardianship
  • Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
  • Social Security Benefits
  • Supplemental Security Income
  • Veterans' Benefits
  • Pension Plans
  • Age Discrimination in Employment
  • Elder Abuse and Neglect

The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like."  Curiously, they don't mention potential clients, including family members of older persons.  I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation.  This book is a very good starting place.

What's missing from the overview?  Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning.  Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down. 

Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal.  Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options.  Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania).  See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.    

Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?  

May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, May 9, 2014

ABA Bifocal Topics: Health Care Advance Directives, Guardianships and More

The April 2014 issue of the American Bar Association's Bifocal publication is now available.  Current articles include:

By the way, while most Bifocal articles are written by practicing attorneys, American Univesity Washington College of Law student, Karna Sandler, is the author of the article on how state laws may affect a guardian's health care authority.  Karna's an intern at the Commission on Law and Aging.  Way to go, Karna!

 In addtion, the issue provides details about AARP Foundation Scholarships to assist individuals in attending the 2014 National Aging and Law Conference to be held in Washington D.C. on October 16-17.  Deadline for the scholarship applications is June 15, 2014. 

May 9, 2014 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Alzheimer's Accountability Act

Via the Alzheimer's Association:

Congress unanimously passed the bipartisan National Alzheimer’s Project Act (P.L. 111-375) in 2010. The law instructs the Department of Health and Human Services (HHS) to develop a strategic plan to address the rapidly escalating Alzheimer’s disease crisis. The annually updated National Alzheimer’s Plan must be transmitted to Congress each year and is to include outcome-driven objectives, recommendations for priority actions and coordination of all federally funded programs in Alzheimer’s disease research, care and services. The plan also includes the goal of effectively treating and preventing Alzheimer’s by 2025.

 

The one missing piece in this plan is a projection of the level of funding necessary to reach the critical goal of effectively treating and preventing Alzheimer’s by 2025. The Alzheimer’s Accountability Act represents a bipartisan effort to ensure that Congress is equipped with the best possible information to set funding priorities and reach the goal of the National Plan to Address Alzheimer’s Disease - effectively preventing and treating Alzheimer’s by 2025.

To express your support for the Alzheimer's Accountability Act, go here.

May 8, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Federal Statutes/Regulations | Permalink | TrackBack (0)

Friday, May 2, 2014

Congressmen introduce bill to expand PACE to some persons under 55

Congressmen Earl Blumenauer (OR-03) and Chris Smith (NJ-04) introduced HR 4543, the PACE Pilot Act, a bipartisan and budget neutral bill that would allow The Program of All-Inclusive Care for the Elderly (PACE) programs greater flexibilities to expand their successful model to care for people under age 55 who have special health risks.

PACE integrates Medicare and Medicaid benefits for members of our society who have some of the most serious and costly health care problems. The program seeks to keep people living in the community rather than in long-term care institutions. Currently, PACE is only available to individuals age 55 or older and who are certified by their state as being eligible for a nursing home level of care. Expansion of these programs will offer younger individuals with disabilities this same integrated, community-based option that supports their independence and quality of life.

“PACE has been a huge success,” said Blumenauer. “What we have realized is that there is a group of people out there who currently don’t qualify for PACE because of the age requirement, but would otherwise greatly benefit from the program due to serious medical conditions. This bill allows us to see how we can bring them into the fold efficiently and affordably.”

“PACE continues to provide patient centric care to many of the frailest members in our society, while enabling them to live in their homes and stay in their communities,” said Smith. “We know that all PACE participants are eligible for nursing home care, yet 90 percent continue to live at home. By removing the nursing home level of care requirement, we can help ensure that people have greater access to preventative services and treatments, thereby helping them maintain their quality of life.”

Currently, a total of 103 PACE sites in 31 states serve about 56,000 enrollees nationwide. A number of research studies show that beneficiaries enrolled in PACE had fewer hospitalizations and nursing home admissions, and lower mortality than similar beneficiaries who were not enrolled in PACE.

Read the bill.

May 2, 2014 in Federal Statutes/Regulations, Medicaid, Medicare | Permalink | TrackBack (0)

Monday, April 28, 2014

NSCLC Director Challenges U.S. House Budget's Harsh Impact on Poor Seniors

National Senior Citizens Law Center's Executive Director Kevin Prindiville analyzes Paul Ryan's Congressional budget numbers for the Huffington Post, highlighting the effect of proposed deep cuts on federal aid programs, cuts that would dramatically impact the nation's poorest seniors.  Kevin writes:

"The U.S. House of Representatives' recent approval of the Ryan budget resolution threatens programs that help poor seniors. In a disappointing vote, 219 House members gave their blessing to a budget that leaves country's older adults to struggle with less food, income, housing and care. The Ryan budget's path to poverty must not be allowed to happen. . . . By cutting essential programs that often make life manageable for those with limited means or resources, the Ryan budget will lead to poverty numbers among seniors the nation hasn't seen since the Depression." 

Kevin then outlines specific terms of the House plan to cut $5 billion from SSI, $732 billion from Medicaid, as well as additional cuts to Meals on Wheels and food benefit programs.    

The NSCLC, a nonprofit law firm with offices on both sides of the country, is a watchdog for the nation's low income elderly, succeeding with tough-to-win cases where the nation's most at-risk seniors are adversely affected by often-hidden changes or procedural traps in Social Security, Medicare and Medicaid programs.  Additional information on NCSLC's advocacy is available on their website, along with a calendar of events including the April 29 free webinar on "Understanding and Impacting Implementation of New Medicaid Home and Community-Based Services Rules."

April 28, 2014 in Federal Statutes/Regulations, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink | Comments (0) | TrackBack (0)

Friday, April 18, 2014

Legal Advocates Take Swift Action to Preserve Access to Social Security Benefits in Oregon

Three legal advocacy organizations, Disability Rights Oregon, the Oregon Law Center and the National Senior Citizens Law Center, worked as a team to initiate a class action suit in Oregon on behalf of 700 individuals with disabilities to protect their rights to continue to receive Social Security benefits needed for basic living requirements.  The individuals' access to monthly Social Security benefits was jeopardized when a non-profit organization, "Safety Net of Oregon," serving as their representative payee was disqualified following an investigation for alleged mismanagement of clients' funds.  The advocates explained:

"This suit is asking that SSA follow its own regulations to make sure that benefits continue to flow to recipients in a safe and responsible manner. In early March, SSA sent a notice to approximately 1,000 SSA recipients who have Safety Net as a representative payee, advising them that their benefits would be suspended beginning April 1, 2014, and that the amount they would receive would be $0.00.  While some recipients have been able to find a new payee, or to become their own payee, many clients never received the notice and have no idea that their benefits are about to be suspended.  Almost 700 individuals still lack new payees as of March 21, 2014.  Many are homeless, have severe and persistent mental illness, developmental disabilities, and/or alcohol or drug addictions.  Many of the clients are profoundly social isolated and alienated, and totally unable to navigate the system on their own." 

In response to the suit, the federal court issued a restraining order on March 26 requiring SSA to assign new payees to former Safety Net Clients, rather than delay, require new applications or other in-person requests by the disabled SSI and SSD recipients.  More background here.   

April 18, 2014 in Federal Cases, Federal Statutes/Regulations, Social Security | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Social Security Administrators Announce Cessation of "Old Debt" Collection Intercepts

The Social Security Administration announced on Monday that it is halting its practice of "Treasury Offsets" to recover debts reported to be 10 years or older.  This decision comes just three days after the Washington Post's front page account of intercepts that targeted IRS income tax refunds going to children of alleged debtors. As reported in today's Washington Post: 

“"I have directed an immediate halt to further referrals under the Treasury Offset Program to recover debts owed to the agency that are 10 years old and older pending a thorough review of our responsibility and discretion under the current law,' the acting Social Security commissioner, Carolyn Colvin, said in a statement.

 

Colvin said anyone who has received Social Security or Supplemental Security Income benefits and 'believes they have been incorrectly assessed with an overpayment' should contact the agency and 'seek options to resolve the overpayment.'”

The Washington Post reported that after its first article, "many hundreds of taxpayers whose refunds had been intercepted came forward and complained to members of Congress that they had been given no notice of the debts and that the government had not explained why they were being held responsible for debts that their deceased parents may have incurred." 

Hmm.  It seems that it is the intercept notice procedures that may be the focus of reexamination by the SSA, rather than giving up on the authority granted by Congress in 2008 to recover "stale" debts.  Plus, it is unclear whether SSA will  explain its theory for seeking recoveries against children of debtors.  

April 15, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Professor Jonathan Barry Foreman: Responding to "Longevity Risk"

Prof. Jonathan Barry ForemanUniversity of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014. 

He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S.   As  several recent studies demonstrate, such as those cited on the Elder Law Prof Blog  here, here and here, many people are not adequately prepared in terms of finances for retirement. 

In responding to this risk, Professor Foreman writes thoughtfully, proposing  systemic alternatives, including expansion of Social Security and SSI for "the oldest old."  Professor Foreman suggests 90 years of age as the starting point for that category.  In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages. 

He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:

"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.

 

While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."

Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this.  The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble. 

April 2, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

March 31, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (1) | TrackBack (0)

Saturday, March 29, 2014

Department of Labor Offers Guidance on FLSA and Shared Living Arrangements

The Department of Labor recently posted a Final Rule that changes how the Fair Labor Standards Act is interpreted for domestic service.  Of special interest is how the Rule impacts shared living programs under Medicaid.

The Department of Labor has also created guidance to assist stakeholders in determining whether an entity paying a direct care worker through a shared living arrangement is required to comply with the FLSA’s minimum wage and overtime requirements. The guidance also describes how certain FLSA principles apply to shared living arrangements. 

These changes become effective January 1, 2015.

March 29, 2014 in Federal Statutes/Regulations, Housing, Medicaid | Permalink | TrackBack (0)

Thursday, March 20, 2014

Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders on Entering a Nursing Hom

Join the National Consumer Law Center for a Webinar on April 2
Space is limited.
Reserve your Webinar seat now here.

Elders often enter nursing homes during some of the most trying times of their lives (emotionally and financially).  Unfortunately, many nursing homes take advantage of these vulnerabilities by inserting unfair terms in their admissions agreements or convincing family members or others to assent to such agreements even though they often lack the authority to do so.  Our webinar will focus on nursing home admissions agreements, identifying the terms that elders and their advocates should be most wary of and explaining the protections that some states afford against enforcement of some of these terms.  Though the webinar will cover a range of issues, we will focus on arbitration clauses, attempts to hold family members liable for a resident’s bills, purported waivers of a facility’s liability, and improper grounds for eviction.

Presenters:  Eric Carlson, Directing Attorney, National Senior Citizens Law Center and David H. Seligman, Irving Kaufman Fellow, National Consumer Law Center.

Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living .  This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.

There is no charge for this webinar.
All time listings are in Eastern Standard Time.
If you have any questions email trainings@nclc.org
Title:     Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders
Date:     Wednesday, April 2, 2014
Time:     2:00 PM - 3:30 PM EDT
After registering you will receive a confirmation email containing information about joining the Webinar.

March 20, 2014 in Federal Statutes/Regulations, Programs/CLEs, Webinars | Permalink | TrackBack (0)

Tuesday, March 18, 2014

Professor Donna Harkness: "What Are Families For? Re-evaluating Return to Filial Responsibility Laws"

Donna_HarknessDonna Harkness, clinical professor of law and director of the Elder Law Clinic at the University of Memphis Cecil C. Humphries School of Law, has a new article on filial support laws in the most recent issue of the University of Illinois's Elder Law Journal.  In "What Are Families For? Re-valuating Return to Filial Responsibilities Laws,"  she concludes: 

"Despite their long history, filial responsibility laws have clearly failed to remedy existing needs. The lack of uniformity in filial responsibility laws, the difficulty and cost of enforcement, along with the fact that such laws provide no coverage to those elder Americans that have no adult children to look to for support, render them a limited response at best. In addition, to the extent that filial responsibility laws are enforced, evidence indicates they would be destructive to family ties and have the counterproductive effect of further eroding and destabilizing the network of support available to elders.

 

Furthermore, by focusing solely on economic support, filial responsibility laws do not address the fundamental need that all persons, and most especially the vulnerable elderly, have to be supported by caring relationships. To the extent that the institution of the family, however defined, is the key to ensuring that such relationships exist, it behooves us as a society to strengthen and foster family ties through policy initiatives that reward caring relationships."

 

March 18, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)