Friday, October 2, 2015

Register Now-Webinar on Proposed Nursing Home Regs

The National Consumer Voice for Quality Long-Term Care is hosting a free webinar on October 6, 2015 from 2-3:30 p.m. According to the announcement

The proposed federal nursing home regulations published by the Centers for Medicare and Medicaid Services (CMS) in July will shape nursing home care for decades to come. CMS needs to hear what consumers, their families and advocates around the country think about the rule. This is one of the most important opportunities you will ever have to impact what these new federal nursing home regulations look like. Comments are due October 14 by 5:00pm ET. 

This webinar is designed to assist advocates in understanding the proposed changes and in participating in the comment process.

Eric Carlson of Justice in Aging and Robyn Grant of the Consumer Voice are the presenters. To register for this webinar, click here.


October 2, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)

Planning Well For The End of Life (as a Foundation)

I've long been fascinated by the history of Atlantic Philanthropies (AP), starting when I first became aware of the behind-the-scenes role of the founder, Chuck Feeney, in funding extraordinary educational endeavors in Ireland, and, as I soon learned, also funding important social and health advocacy movements around the world.  The end of AP as a multi-million dollar grant-making foundation is near at hand, although not the end of its impact.

Linked here is the latest report from the CEO of AP, Christopher Oechsli, with linked reports on AP's final grants, including its support for a groundbreaking National Dementia Strategy in Ireland.

October 2, 2015 in Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, International, Retirement | Permalink | Comments (0)

Thursday, October 1, 2015

Michigan Supreme Court Invites Amicus Briefs From Elder Law & Disability Law Organizations

The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.

Following the Michigan Court of Appeals' 2014 ruling in  Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks.  Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.

In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions.  Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."

The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."

October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 29, 2015

Does LegalZoom Compete with Law Firms? Co-Founder Brian Liu Says "No"

Over the weekend I caught an interview with Brian Liu, co-founder of LegalZoom, broadcast on From Scratch, a radio show about "entrepreneurial life."  The host, Jessica Harris, who has an interesting business background of her own, is a very good interviewer, encouraging guests to explore strengths and weaknesses of their ideas, moving from first inspiration to current goals.  She also asks "work/life balance" questions, often getting candid admissions of the private struggles some have to achieve balance.

I was intrigued with Liu's central premise, that his company does not compete, at least not directly, with law firms for business.  Rather, he believes that the vast majority of clients are drawn to his company precisely because they would never go to a lawyer, whether because of cost, unease about attorneys, or perceptions about value. 

It was also interesting to hear that Legal Zoom's first ten clients, accessing the company's on-line document portal on a Friday night, were seeking "living wills."  That fact tells us a lot about underserved legal and health care needs, doesn't it.  

September 29, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Web/Tech | Permalink | Comments (0)

A Village to Age in Place

My dear friend and colleague, Mark Bauer, sent me this article, Why More Seniors Are Forming Their Own 'Villages' . 

The story features the establishment of Beacon Hill Village, where twelve

like-minded neighbors ...  founded the Beacon Hill Village, a local group for independent seniors to meet and support one other through the elder years. By pooling yearly membership fees, members of the village pay for a small staff that helps them find services like drivers, cleaners, and handymen.

In 2002 they formally launched Beacon Hill village as a nonprofit (despite its name, the village doesn't own any property and has no physical housing component), and today count nearly 350 members. Their example has since spurred more than 170 other villages across the country, a growing experiment in how urban seniors can network with their peers—and empower themselves.

Members pay an annual fee which includes access to staff who assist residents in obtaining needed services (the village does not provide "direct services"). There are intangible benefits as well to this model.  The story discusses the sense of community provided by this concept and its benefit to residents.  The concept appears to be gaining fans.

In 2010 a national organization called the Village to Village Network emerged to help found new villages and connect existing ones. ... the network’s St. Louis-based director, said she expects the number of villages to double within two years. The average village has about 100 members, meaning such a rapid expansion would still only reach about 35,000 Americans in all. [The director] ... said lower-income members are underrepresented in the network at large, and that she and her colleagues hope to change that.

As the model expands across 40 states, managers ...  are trying to reconcile exponential growth with an emphasis on neighborhood-scale relationships. Fundraising, too, presents a challenge. By design, membership fees barely cover costs at many villages, including Beacon Hill, so grants and foundations often make up the rest. That presents future villages with a tough choice: commit to the fundraising grind and the uncertainty that comes with it, or raise membership fees and risk shutting out lower-income neighbors.

The Beacon Hill Village website offers this description

Beacon Hill Village, a member-driven organization for Boston residents 50 and over, provides programs and services so members can lead vibrant, active and healthy lives, while living in their own homes and neighborhoods.

Benefits include access to discounted  providers who can help you manage your household, stay active and healthy, and serve your driving needs. Our social and cultural programs are always changing to support member interests.

To learn more about Beacon Hill Village, click here.  The Village to Village Network website describes the village concept as "Aging's new frontier".  The website contains information about the various villages in the U.S., information about how to start a village, an interactive map, information about upcoming conferences, and more.  Click here to learn more about the network.  This is an interesting grass-roots effort that seems to be flourishing.

September 29, 2015 in Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Monday, September 28, 2015

Student Writing Competition on Disability Law: Entries Due by January 15, 2016

Thomas Jefferson School of Law is hosting its second annual student writing competition focusing on disability law.  The Crane Writing Competition, named in honor of a Thomas Jefferson alum, Jameson Crane III, seeks to encourage student scholarship at the intersection of law and medicine, or law and social services.  A central purpose is to further development of legal rights and protections, and improve the lives of those with disabilities.

Who can enter?  The competition is open to currently enrolled law students, medical students and doctoral candidates in related fields, who attend an accredited graduate program of study in the U.S. 

Deadline for entries?  January 15, 2016 (by midnight, Pacific Standard Time) via electronic submission.  For details see the competition website at Thomas Jefferson School of Law:

What will be your topic? The competition accepts papers on a wide range of topics related to disability law, including legal issues arising from employment, government services and programs, public accommodations, education, higher education, housing and health care.  This should integrate well with students currently taking or who have recently completed a seminar course, thus allowing that all important "double value" for good papers.

Prizes include cash ($1,500 to first place; $1,000 for each of two second place winners), plus potential publication.

My thanks to Professor Susan Bisom-Rapp for sharing news of this year's competition.  She is coordinating the competition and you can send questions directly to Susan. 

September 28, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, Science | Permalink | Comments (0)

Sunday, September 27, 2015

Keeping Track of Preventive Services

Trying to keep straight all of the preventive services available to individuals is daunting, but the Kaiser Family Foundation (KFF) has made it easy with their new tool, Preventive Services Tracker.   There are separate trackers for each condition including cancer chronic conditions, immunizations, sexual health, health promotions and preganancy-based.  Organized into easy-to-use charts,, each chart provides information on the required service, the target population, the recommendation, coverage clarifications and effective dates.  The charts also provide links for each required service to explain more details.

You might also want to check out their article on Preventive Services Covered by Private Health Plans Under the Affordable Care Act and the accompanying fact sheet.


September 27, 2015 in Cognitive Impairment, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, September 24, 2015

Family Caregivers Show Support for Pennsylvania State Assistance at State Capitol

If you have worked in Elder Law long enough, you have probably received a panicked call from a family caregiver who is unprepared for a loved one to be discharged on short notice from hospital care.

2015-capitol-caregiving-event-tamesha-keelOn September 22, the Pennsylvania Capitol in Harrisburg was crowded with individuals wearing coordinated colors, showing their support for Pennsylvania Caregivers, including family members who are often struggling with financial and practical challenges in caring for frail elders. Here's a link to a CBS-21-TV news report, with eloquent remarks from Tamesha Keel (also pictured left), who has first-hand experience as a stay-at-home caregiver for her own aging mother.  Tamesha recently joined our law school as Director of Career Services.

AARP helped to rally support for House Bill 1329, the Pennsylvania CARE Act.  The acronym, coined as part of a national campaign by AARP to assist family caregivers, stands for Caregiver Advise, Record and Enable Act.  HB 1329  passed the Pennsylvania House in July 2015 and is now pending in the Pennsylvania Senate.

We have written on this Blog before about pending CARE legislation in other states.  A central AARP-supported goal is to achieve better coordination of aftercare, starting with identification of patient-chosen caregivers who should receive notice in advance of any discharge of the patient from the hospital.  Pennsylvania's version of the CARE Act would require hospitals to give both notice and training, either in person or by video, to such caregivers about how to provide appropriate post-discharge care in the home. 

I'd actually like to see a bit more in Pennsylvania. It is unfortunate that the Pennsylvania CARE Act, at least in its current iteration (Printer's Number 1883), does not go further by requiring written notice, delivered at least a minimum number of hours in advance of the actual discharge. AARP's own model act suggests a minimum of 4 hours, consistent with Medicare rules.

Under Federal Law, Medicare-participating hospitals must deliver advance written notice of a discharge plan, and such notice must explain the patient's rights to appeal an inadequate plan or premature discharge. A timely appeal puts a temporary hold on the discharge. See the Center for Medicare Advocacy's (CMA) summary of key provisions of Medicare law on hospital discharges, applicable even if a patient at the Medicare-certified hospital isn't a Medicare-patient. CMA's outline also suggests some weaknesses of the Medicare notice requirement.

AARP's original CARE Act proposals are important and evidence-based, seeking to improve the patient's prospects for post-hospitalization care through better advance planning. At the same time, there's some irony for me in reading the Pennsylvania legislature's required "fiscal impact" report on HR 1329, as it reports a "0" dollar impact.  That may be true from the Pennsylvania government's cost perspective, but for the hospitals, to do it right, whether in person or by video, training is unlikely to be revenue neutral.  I think we need to talk openly about the costs of providing effective education or training to home caregivers.

If passed by the Senate, Pennsylvania's CARE Act would be not become effective for another 12 months.  The bill further provides for evaluation of the effectiveness of the rules on patient outcomes.   

As is so often true, states are constantly juggling the need for reforms to solve identified problems, with the costs of such reforms.  Perhaps the current version of the Pennsylvania bill reflects some compromises among stakeholders. According to this press statement, the Hospital and Health System Association of Pennsylvania supports the current version of AARP's Pennsylvania CARE Act.

September 24, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 21, 2015

Wise Words on Cuba, Health Care & Aging

During the last few days, I've been part of a series of conversations (including this podcast from WITF-FM's Smart Talk) about Cuba, with topics magnified by the awareness of Pope Francis visiting in Havana.  I was often asked why I am interested in Cuba, and one person asked if I was "moving away" from a focus on aging.  Actually, my research interests in aging have drawn me to research in Cuba.  Old and Renewed in Cuba 2015

Statistical information on mortality and positive health outcomes in Cuba rival that of so-called "first world" nations. For example, according to World Health Organization reports (WHO 2013), Cuban life expectancy at birth is 77 years for men and 80 years for women. For comparison, WHO reports USA life expectancy at 76 for males and 81 for women.  Costs of health care are quite startling, as Cuba reports $1,828 per capita spending, while the USA reports per capita spending as $9,146.  Of course, one must dig deeper, to look at health care costs as percentages of GDP and other factors, including quality of life in later years.

During an especially vibrant meeting with a group of interested-in-Cuba academics from around central Pennsylvania, I learned from a colleague at Dickinson College in Carlisle, Professor Susan Rose, about a fascinating book tracing the Cuban model for health care to Che Guevara.  It is easy for Americans to focus only on Che as a folk hero (or, for some, anti-hero), remembered for his bearded image and rifle, side-by-side with Fidel and Raul Castro as they fought their way to Havana. Professor Rose recommended to me a 2011 book by her husband Steven Brouwer, Revolutionary Doctors: How Venezuela and Cuba Are Changing the World's Conception of Health Care.  From the book:

Che never lost sight of his original aspiration -- combining the humanitarian mission of medicine with the creation of a just society. When he addressed the Cuban militia on August 19, 1960, a year and a half after the triumph of the revolution, he chose to speak about "Revolutionary Medicine" and the possibility of educating a new kind of doctor....


Since then Cuban medicine and health services have been developed in a number of unique and revolutionary ways, but only now, nearly fifty years later, has Che's dream come to full fruition. Today it is literally true that compesinos, along with the children of impoverished working-class and indigenous communities, are becoming doctors and running, "with unreserved enthusiasm, to help their brothers."  

We had a keynote presentation at Penn State's Dickinson Law by a Penn State-Berks professor, Dr. Belen Rodriguez-Mourelo, who writes with great sensitivity in her book Encounters in Exile about the experience of the Cuban diaspora. (Her photo, demonstrating one of the many contrasts in imagery from Havana, is above.) Belen reminded us of the need for great care in our thinking about Cuba, to avoid treating renewed diplomatic relations as merely opening the doors to a new theme park.  Esas son palabras sabias - wise words.

September 21, 2015 in Current Affairs, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (1)

Sunday, September 20, 2015

Long Term Care Insurance-Premiums On the Rise

The NY Times ran an article at the beginning of the month about the rising premiums for long term care insurance policies. Managing the Costs of Long-Term Care Insurance notes that New Yorkers with policies are seeing "double-digit increases in the premiums," not the first policy holders to do so.

Insurance regulators in many states have been approving large increases in long-term care premiums for older policies, as it became clear that insurers badly misjudged the pricing on the policies and are losing money on them. In particular, regulators say, insurers overestimated the number of consumers who would let their policies lapse before filing any claims. That means more people are holding on to the policies, raising the likelihood of more claims.

The story notes that some policy holders have received notices of premiums increasing by 48-60% although some lower increases are occurring, especially with changes to the existing policies.  Some companies no longer sell new policies, according to the story, but seek rate increases on existing policies.

September 20, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Friday, September 18, 2015

Medicare Criminal Investigation? FBI Raids Home of CEO of Nursing Home Company

As we have frequently reported on this Blog (see e.g., here and here and here), the Obama Administration has been aggressive in pursuit of Medicare and Medicaid claims tied to unlawful reimbursement or kickback claims for companies involved in long-term care.  But even given that history, often tied to whistleblowing by current or former employees, it is unusual to see criminal investigations. Thus recent media reports about the FBI raiding the CEO of American Senior Communities was eye-catching, including this report from the Indianapolis Star:  

A cadre of federal agents raided the Carmel home of an executive of a chain of nursing homes Tuesday morning. But the most important question remains unanswered: Why?

The home is owned by James G. Burkhart, the CEO of American Senior Communities, according to Hamilton County property records. FBI investigators also were at the Southside headquarters of American Senior Communities, at 6900 Gray Road, according to reports.

American Senior Communities manages nearly 100 senior care facilities and is one of the largest nursing home management companies in Indiana. Among those are 60 sites, including skilled nursing facilities and assisted living facilities throughout the state, that the company manages under a contract with Marion County’s public health agency.

According to media reports, American Senior Communities (ASC) issued the following press statement following the raid:

"American Senior Communities’ most important priority is to continue to provide excellent care to our patients and residents. ASC has been contacted by the federal government in connection with an investigation into certain individuals or practices. ASC is fully cooperating with the government and is conducting its own review to ascertain the relevant facts. ASC is in compliance with all federal, state and local laws and regulations and will continue to conduct its business in accordance with the highest standards of integrity." 

Stay tuned...(but don't hold your breath).

September 18, 2015 in Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, September 17, 2015

Nursing Homes in Prisons

Last semester one of my students wrote a paper on the graying of prisons. So tThis article in Kaiser Health News (KHN), When Prisons Need To Be More Like Nursing Homes  caught my eye. 

Why do we see the graying of prisons? The article references the tough on crime lasts back in the 1980s and 1990s but there is more to it. "In 2013, about 10 percent of the nation’s prison inmates ... were 55 or older. By 2030, the [ACLU] report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration."

The article also discusses the costs of caring for inmates who are elderly and reviews some state responses. For example the Fishkill Prison in New York has a unit for those prisoners with cognitive impairments:

This unit, the first of its kind in the country, is specially designed to meet the needs of inmates with dementia-related conditions. It is part of the state’s medical hub at Fishkill, a medium-security prison 70 miles north of New York City. The 30-bed unit, opened in 2006, is set up to resemble a nursing home more than a prison ward. The walls are painted white and the lights are bright, intended to elevate and stabilize mood. Inmates are allowed to walk freely around the unit (wandering is common for those with dementia or related conditions). The staff includes specially trained physicians, nurses, clinical psychologists, psychiatrists, social workers, and corrections officers. The average age of the unit’s 24 inmates is 62.

Care for prisoners in this unit costs almost twice as much as for those in the prison population outside this unit. In California inmates in "good standing" provide care for inmates who have dementia or other illnesses related to advanced age.

The Gold Coats — the caretakers wear gold-colored jackets — assist patients with daily tasks such as dressing, shaving, showering, and other personal hygiene. They escort patients to the dining hall, and to the doctor. They act as companions, protecting their patients from being bullied, and make sure they get food at meal time. The Gold Coats also lead exercise classes and activities designed to stimulate memory. There are Gold Coat programs at 11 California prisons.

Connecticut tried a completely different approach, basically building a nursing home for prisoners  and others who are "difficult to place" and in need of that level of care.  As noted in the article,that road hasn't been completely smooth.

The town has sued to shut it. Citing zoning restrictions, the town argues that 60 West should be considered a prison/penitentiary, rather than a nursing home. Rocky Hill says it also fears that if nursing-home care for inmates becomes more common, rules on admission will eventually be loosened to allow more dangerous patients to be admitted, potentially endangering neighborhood.

At the same time, the federal government has declined to certify 60 West as Medicaid eligible, because of the unlikely event that an ailing inmate could recover and be returned to prison. Inmates aren’t eligible for Medicaid, and with the prospect, however unlikely, that some patients could once again be incarcerated, the government is arguing that the patients are ineligible, and thus the entire facility is ineligible. The owners are considering an appeal.

Regardless of the approach taken by these 3 states, clearly state correctional officials need to think through the options to provide care for prisons' graying population.

Just fyi the  "[KHN]  story was written by Maura Ewing for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system." Some additional stories from the Marshall Project include Do You Age Faster in Prison? , Older Prisoners, Higher Costs , Dying in Attica and Too Old to Commit Crime?

September 17, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, September 16, 2015

Ward vs. Incapacitated Person? The Challenges of Labels in Modern Proceedings

Catching up on a bit of reading, I notice that the Uniform Laws Commission has a committee hard at work on drafting proposed revisions to the 1997 Uniform Guardianship and Protective Proceedings Act  (UGPPA).  University of Missouri Law Professor David English is Chair of that committee,  with many good people (and friends) on the working group.

In reviewing their April 2015 Committee Meeting Summary, available here, I was interested to see the following note under the discussion heading about "person-first language:"

Participants engaged in a lively discussion of the desirability of person-first language, and possible person-first terminology.  There was general agreement that the revision should attempt to incorporate person-first language.  For the next meeting, the Reporter [University of Syracuse Law Professor Nina Kohn] will attempt a draft that uses language other than "ward" or "incapacitated" to the extent possible and utilizes person-first language instead (precise wording still to be determined).  The Reporter will also attempt to use a single term that can describe both persons subject to guardianship and those subject to conservatorship.

I've struggled with "labels" in writing and speaking about older adults generally, and incapacitated persons specifically.  It will be interesting to see what the ULC committee recommends on this and even more daunting tasks, including how to better facilitate and promote "person-centered decision-making" and limited guardianships.

September 16, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 15, 2015

New Mexico Appeals Court: No Physician Aid-in-Dying

The New Mexico Court of Appeals issued its opinion in August in the case of Morris, et al v.Brandenburg. The trial court had previously ruled that the statute in question, N.M. § 30-2-4 was unconstitutional.  The appellate court determined that "[t]he question presented is whether this statute may constitutionally be applied to criminalize a willing physician's act of providing a lethal dose of a prescribed medication at the request of a mentally competent, terminally ill patient who wishes a peaceful end of life (aid in dying) as an alternative to one potentially marked by suffering, pain, and/or the loss of autonomy and dignity." id. at (1). The trial court had found a fundamental liberty interest to have physician aid-in-dying under the state constitution, but the appellate court disagreed. id.

Aid in dying, the medical concept of dying with autonomy and dignity, is a relatively recent human phenomena and deserves appropriate public evaluation and consideration. However, as a new legal consideration, it must also be carefully weighed against longstanding societal principles such as preventing a person from taking the life of another; preventing suicide; preventing assisted suicide; promoting the integrity, healing, and life preserving principles of the medical profession; protecting vulnerable groups from unwanted pressure to considering aid in dying as the best alternative to other medical options; and promoting human life where aid in dying is not the appropriate medical option despite a patient's request for its use... The recent advances in life-prolonging medical care and the public acceptance of aid in dying in some states has not diminished the other longstanding societal principles and concerns regarding intentional killing, the dying process, the preservation of life, and the basic life saving principles embedded in the medical profession.

Id. at ¶ 37 (citations omitted). The appellate court goes on to note that the dying process itself and the resulting death are not included in the state's constitutional enumerated rights and " can only qualify as inferences that might exist within the categories of liberty or happiness." id. at ¶ 41. The court also had concerns regarding the narrow application of the right as it would only apply to certain citizens who are terminally ill, death within a certain time, etc.  id. at ¶¶ 45-47 After reviewing the remaining arguments of the plaintiffs, the majority ruled. 

We reverse the district court's ruling that aid in dying is a fundamental liberty interest under the New Mexico Constitution. Accordingly, we reverse the district court's order permanently enjoining the State from enforcing Section 30-2-4. We affirm the district court's determination that, for statutory construction purposes, Section 30-2-4 prohibits aid in dying. Separate from the Concurring Opinion, I would also remand this case to the district court to make any further findings it deems necessary, to conduct both an intermediate scrutiny and rational basis review of Section 30-2-4, as well as dispose of Plaintiffs' remaining claims.

Id.  at ¶ 54. The opinion includes concurring and dissenting opinions.


September 15, 2015 in Advance Directives/End-of-Life, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 14, 2015

Commenting on Proposed Medicaid Regs? Comment Period Expanded to October 14

As we have reported earlier on this Blog, CMS is seeking comments on proposed Medicaid rules affecting nursing facilities, including proposals that could affect the use of pre-dispute "arbitration" agreements. Justice in Aging provided the helpful update that the comment period has been extended to October 14, 2015.  In addition, Justice in Aging has provided a link to model or sample comments to use clarify consumer concerns.  

Here is a link to the CMS extension notice.  Here is a link to important information about commenting on key aspects of the proposals, prepared by The National Consumer Voice for Quality Long-Term Care.    

September 14, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Sunday, September 13, 2015

California Legislature Passes Bill on Physician-Aided Dying

The NY Times ran a story that on September 11, 2015, the California legislature passed a bill that provides for physician-aided dying for folks with terminal illnesses. California Legislature Approves Assisted Suicide   notes that if Governor Brown signs the bill, California will become the 4th state with a statute allowing PAD (physician-aided dying). The other three are Washington, Oregon, and Vermont.  (It is allowed in Montana pursuant to a state supreme court decision. A New Mexico appellate court recently overturned a trial court opinion that allowed it).

The story notes that the California legislation is based on Oregon's, but with some clear differences:

The California law would expire after 10 years and have to be reapproved, and doctors would have to consult in private with the patient desiring to die, as part of an effort to ensure that no one would be coerced to end his or her life — a primary concern for opponents of the law.

You may recall that this is not the first attempt to approve PAD in California.  "Previous bills to legalize assisted suicide have failed in California, including one this year, when pressure from the Roman Catholic Church helped stall a similar measure in the Assembly. (The bill was resurrected for a special session, where it could bypass Assembly committees.)"

Stay tuned...

September 13, 2015 in Advance Directives/End-of-Life, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 9, 2015

A Technology Safety Net for Elders to Age in Place?

A few weeks ago I blogged about the technology innovations announced as part of the 2015 White House Conference on Aging. I was interested to read a July 24, 2015 article in the NY Times on the use of technology as a sort of "safety net" for elders.  Technology, While Not a Fountain of Youth, Can Make Aging Safer highlights a number of different services and technologies that can allow a person to remain at home and independent longer.  The article quotes Dr. Laura Carstensen , the Director of the Stanford Center on Longevity, who said "[i]n three to five years, aging will be transformed... We are in the early stages of seeing what technology can do. Nursing homes will become like the poorhouses of yore as technology makes living at home easier...."

I found the various technologies discussed in the article quite fascinating (and of course, I want to try them out right now). The article recognizes there is some ramp up time to a comfort level in using technology, especially for digital immigrants who still have something of a learning curve to adopting such new technologies. 

The article referenced Dr. Joseph Coughlin, Director of MIT's AgeLab, who notes that "[d]espite the awkwardness that can accompany the adoption of new technology ...[he] predicts that technology will help people stay at home and manage their frailties far longer than they can today, when the average person who enters assisted living does so at 83."  The article quotes Dr. Coughlin: “[o]ld age looks really good from here... [b]ut society must make sure that there’s still purpose to life too.”

September 9, 2015 in Current Affairs, Health Care/Long Term Care, Housing, Web/Tech | Permalink | Comments (0)

Tuesday, September 8, 2015

Deadline 9/14/2015: Comments Due to CMS re "Binding Arbitration" in Nursing Home Admission Agreements

Erica Wood, a director for the ABA Commission on Law and Aging,  writing for the August 2015 issue of the ABA's Bifocal Journal, reminds us that the Centers for Medicare and Medicaid Services (CMS) is seeking comments on proposed changes to rules affecting Long-Term Care Facilities that participate in Medicare and Medicaid programs, including the issue of whether CMS should prohibit "binding" pre-dispute arbitration provisions in nursing home contracts.  The deadline for public comments is 5 p.m., on Monday, September 14, 2015.  Electronic comments, using the file code CMS-2360-P, can be submitted through this portal:

How do you feel about pre-dispute "agreements" binding consumers, including consumers of long-term care, to arbitration? Your comments to CMS can make a difference! 

I remember my first encounter with "binding" pre-dispute arbitration provisions in care facilities. In the early years of my law school's Elder Protection Clinic, a resident of a nursing home had purportedly "given away" possessions to an aide at nursing home, who promptly sold them on EBay.  The resident was lonely and the "friendship" included the aide taking her out the front door of the facility, via a wheel chair, on little outings, including trips where the resident could visit her beloved house, still full of a life-time of antiques and jewelry.  (The resident might have recovered enough to go home -- although eventually a second stroke intervened.)

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September 8, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management | Permalink | Comments (0)

Thursday, September 3, 2015

Third Circuit Rules Medicaid Applicants' Short-Term Annuities Are Not "Resources" Preventing Eligibility

In a long awaited decision on two consolidated cases analyzing coverage for nursing home care, the Third Circuit ruled that "short-term annuities" purchased by the applicants cannot be treated by the state as "available resources" that would delay or prevent Medicaid eligibility.  The 2 to 1 decision by the court in Zahner v. Secretary Pennsylvania Department of Human Services was published September 2, 2015, reversing the decision (linked here) of the Western District of Pennsylvania in January 2014.

The opinion arises out of (1) an almost $85k annuity payable in equal monthly installments of $6,100 for 14 months, that would be used to pay Donna Claypoole's nursing home care "during the period of Medicaid ineligibility that resulted from her large gifts to family members"; and (2) a $53k annuity purchased by Connie Sanner, that would pay $4,499 per month for 12 months, again to cover an ineligibility period created by a large gift to her children. 

The Pennsylvania Department of Human Services (DHS) argued that the transactions were "shams" intended "only to shield resources from the calculation of Medicaid eligibility."  However, the majority of the Third Circuit analyzed the transactions under federal law's "four-part test for determining whether an annuity is included within the safe harbor and thus not counted as a resource," concluding:

Clearly, if Congress intended to limit the safe harbor to annuities lasing two or more years, it would have been the height of simplicity to say so.  We will not judicially amend Transmittal 64 by adding that requirement to the requirements Congress established for safe harbor treatment.  Therefore, Claypoole's and Sanner's 14-and 12-month contracts with ELCO are for a term of years as is required by Transmittal 64.

Further, on the issue of "actuarial soundness," the court ruled:

 [W]e conclude that any attempt to fashion a rule that would create some minimum ratio between duration of annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations.  It would be an additional requirement to those that Congress has already prescribed and result in very practical difficulties that can best be addressed by policy choices made by elected representatives and their appointees.

The her short dissent, Judge Marjorie Rendell explained she would have affirmed the lower court's ruling in favor of DHS on the "grounds that the annuities ... were not purchased for an investment purpose, but, rather, were purchased in order to qualify for benefits."  In addition, she accepted DHS' argument the annuities were not actuarially sound.

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September 3, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 2, 2015

Register Now: Webinar on Balancing Protection and Self-Determination

The National Consumer Law Center (NCLC),  the ABA  and the Quality Trust for Individuals with Disabilities announce an upcoming webinar on September 22, 2015 from 2-3:30 edt.  According to the website,

Research shows that empowering individuals to actively participate in personal decision making improves life outcomes and can reduce the risk of abuse and exploitation.  There is a risk of abuse and exploitation in all models of decision making for persons with differing abilities. An overly protective response to situations where a person with varying levels of capacity may be at risk can stifle self-determination and empowerment. Protection needs to be carefully balanced with protecting human and constitutional rights. Adults have a basic right to make choices, good or bad, and determine the course of their lives. An overly aggressive, or inappropriate protective response to limited capacity can itself be a form of abuse. This session will talk about recognizing the signs and signals of abuse, neglect (self-neglect) and exploitation, tools to maximize communication with persons with differing abilities, and promoting self-determination and choice through supported approaches that mitigate against risk and empower individuals. The session will explore the application of the Supported Decision Making model to assist persons in making choices, increase access to positive life outcomes, and reduce the risk of harm.

The webinar is free. To register click here.

September 2, 2015 in Cognitive Impairment, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)