Monday, October 20, 2014
Earlier this month, CMS announced that it was going to update and improve the Nursing Home Compare site, which should result in more accurate information available for consumers. According to the October 6, 2014 press release, "the expansion and strengthening of the agency’s widely-used Five Star Quality Rating System for Nursing Homes will improve consumer information about individual nursing homes’ quality."
Starting in January, "CMS and states will implement focused survey inspections nationwide for a sample of nursing homes to enable better verification of both the staffing and quality measure information that is part of the Five-Star Quality Rating System." CMS is also adding to the quality measures used. Also CMS will be doing some "focused survey inspections" for verification purposes of the information that is being submitted.
According to the Center for Medicare Advocacy October 16, 2014 weekly alert, a new law, "[t]he Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act of 2014) ... supports one of the key changes –providing funding to implement a provision of the Affordable Care Act (ACA) that requires nursing home staffing data reported on Nursing Home Compare to be electronically-submitted and "based on payroll and other verifiable and auditable data."
Check it out!
Friday, October 17, 2014
With the mid-term elections in a few weeks away, there are some interesting proposals to watch, according to a series in Governing. A story that was published on October 16, 2014 focused on Arizona. Arizona Tests Popularity of the Dying's Right to Try Unapproved Drugs focuses on the ability of terminally ill individuals to try experimental drugs. Proposition 303 would allow the patients to not wait for FDA ok if the drug maker is willing to get the drug to the patient. Arizona is not the first state to consider this. Similar provisions have been approved in Colorado, Missouri, Michigan and Louisiana.
Even though FDA approval wouldn't be required, it still isn't the wild west of experimental drug use. "The drug must have passed initial toxicity and dosage testing under the FDA’s clinical trial process. Doctors also can’t prescribe an unapproved drug unless the patient has exhausted other options. Manufacturers are under no obligation to provide the drugs and insurers aren’t required to pay for them."
The article discusses the opposition to such laws, giving reasons such as providing false hopes and the likely decrease in clinical trials. Supporters refute the agrument, noting that the terminally ill folks are not typically eligible for clinical trials. These laws are different than the FDA's "compassionate use" provisions which "allows for experimental drugs for even seriously ill patients, and the program rarely denies an application, but “right-to-try” supporters again argue that the process is too complex and slow, as evidenced by application figures averaging about 1,000 a year."
One thing different about Arizona's proposal-the residents are voting on the provision.
Wednesday, October 15, 2014
Governing ran a story about a recent court ruling, Mental Health Ruling in Washington State Could Reverberate through the Country. The article concerns the practice of "psychiatric boarding" or "[w]ith increased demand on proper mental health facilities, the practice known as psychiatric boarding -- temporarily holding mentally ill patients in hospital ERs until beds become available at certified treatment centers..." A national issue, the practice is unconstitutional in Washington state as a result of a lawsuit filed last year by a number of patients. Not only did experts testify that patients who are psychiatrically boarded get little, if any, mental health treatment, in fact, one government report shows that the patients will actually deteriorate. Implications of state laws that require involuntary detention: "states also regularly lack the space to place individuals in certified facilities. As a result, patients are held for days -- in some cases literally strapped to beds -- in emergency departments at acute-care hospitals until a bed opens up."
In August, the Washington State Supreme Court ruled this practice unconstitutional, despite the state's arguments regarding insufficient budgets and available beds. The article notes that Washington state is not alone in facing this issue, with a number of states admitting to psychiatric boarding. However, just increasing beds isn't the solution to this issue, the article goes on to discuss. Quoting the executive director of the Bazelon Center, the better solution is more beds plus broad-based community care.
Friday, October 10, 2014
Although some think substance abuse is a problem for the young, a recent story in the New York Times dispels that thought. More Older Adults Are Struggling With Substance Abuse ran October 3, 2014 looks at the number of elders who are substance abusers-whether drugs or alcohol. The numbers are surprising:
An estimated 2.8 million older adults in the United States meet the criteria for alcohol abuse, and this number is expected to reach 5.7 million by 2020, according to a study in the journal “Addiction.” In 2008, 231,200 people over 50 sought treatment for substance abuse, up from 102,700 in 1992, according to the Substance Abuse and Mental Health Services Administration, a federal agency.
Although alcohol abuse seems to rank first, the "rate of illicit drug use among adults 50 to 64 increased from 2.7 percent in 2002 to 6.0 percent in 2013" according to the story. The article mentions several studies, not only looking at the extent of the abuse, but the reasons behind these addictions. Although for some, retirement may be a catalyst, many times it is not the sole reason, "'with the conditions leading to retirement, and the economic and social nature of the retirement itself, having a far greater impact on substance use than simple retirement itself..."' Some of the "firsts" experienced in later life, such as deaths of spouses and friends, may be a contributing factor that requires "coping skills" these folks haven't had to yet possess.
The article also touches on the potential lack of doctor training on dealing with elder patients with substance abuse issues, and notes some symptoms associated with dementia may have similar symptoms to those of addictions.
Thursday, October 9, 2014
Kurzweil Accelerating Intelliegence (Kurzweil AI) ran a story that got my attention. The signature of aging in the brain reports on the results of a study that looks at a "signature" in the brain "that may be the “missing link” between cognitive decline and aging and that may in the future lead to treatments that can slow or reverse cognitive decline in older people..."
This is a technical article and perhaps not the type we typically cover in our blog, but I thought it important enough to mention. Since I don't have a scientific background, I decided to excerpt some of the findings
they identified a unique “signature of aging” that exists solely in the choroid plexus. They discovered that one of the main elements of this signature was interferon beta, a protein that the body normally produces to fight viral infection.
Turns out this protein also appears to have a negative effect on the brain. When the researchers injected an antibody that blocks interferon beta activity into the cerebrospinal fluid of the older mice, their cognitive abilities were restored, as was their ability to form new brain cells.
Why this is important? It may lead to different treatments to help with cognitive decline-the researchers "hope that this finding may, in the future, help prevent or reverse cognitive decline in old age by finding ways to rejuvenate the immunological age of the brain."
Sunday, October 5, 2014
I've been posting quite a bit about end of life issues. I wanted to be sure everyone saw the story in the NY Times on September 25, 2014 about one child's struggle to honor her dad's wish to die at home. Unfortunately, this isn't a new issue, and clearly one that isn't near resolution. The story, Fighting to Honor a Father’s Last Wish: To Die at Home tells the story of Joseph Andrey and his daughter's efforts "to fulfill her father’s dearest wish, the wish so common among frail, elderly people: to die at home...But it seemed as if all the forces of the health care system were against her — hospitals, nursing homes, home health agencies, insurance companies, and the shifting crosscurrents of public health care spending." On many occasions her dad had been discharged from the hospital to a SNF for rehab. This time she wanted to have him discharged to home, but was unsuccessful and her dad was transferred to a SNF, again.
The blog post illustrates the catch-22 within which Mr. Andrey and his daughter found themselves. The post also explains the recently-released Institute of Medicine report on Dying in America (we blogged about it earlier). Returning to Mr. Andrey's story, the article includes a short biography of his life (including a brief tenure as a child in Vaudeville), his wife's decline from Alzheimer's, his up close and personal...and ongoing...experience with the U.S. health care system, and ends with his final years. He had frequent stays at SNFs because of the inability to secure home health care in a system where there were financial incentives for SNFs but not the same profitability, if you will, for the home health agencies.
Despite all of his daughter's efforts, Mr. Andrey didn't die at home, but in a hospice within a hospital. If you read the entire article, by turns you will be appalled and saddened. If you assign this to your students, there are many opportunities for discussion about the U.S. health care system as well as end of life care in our country.
Friday, October 3, 2014
Yesterday I published a post on assisted dying "tourism" in Switzerland. Following up that story is another story on a related topic. Reported in the Daily Mail Online, Elderly couple to die together by assisted suicide even though they are not ill focuses on a Brussels couple in their late 80s who, despite not being terminally ill, plan to die together because they "fear loneliness if the other one dies first from natural causes" and the couple's 3 adult children have said they would be unable to care for the surviving parent when the first one died. The kids have found a doctor to help on the basis of the parents' "mental anguish constituted the unbearable suffering needed to legally justify euthanasia."
The couple has selected the date and the method of euthanasia. Although double euthanasia may seem novel, theirs will not be the first time this has occurred. However, their request has created something of a stir in the UK, according to the story. The story notes that in Brussels, evidently mental anguish is becoming a more accepted basis for a euthanasia request.
Thanks to Sushil Preet Cheema, one of my elder law concentration students, for sending me the link to this story.
Thursday, October 2, 2014
Naomi Cahn, our colleague at GW Law who frequently alerts us to interesting stories, sent me a note about this recent story from the Washington Post on suicide tourism. Tourism to Switzerland for assisted suicide is growing, often for nonfatal diseases reports on an ongoing study in Switzerland that shows an increases in tourists in the Zurich area seeking assisted suicide.
The study, on "Suicide Tourism", was reported in the Journal of Medical Ethics. The August volume contains the article about the study: Suicide tourism: a pilot study on the Swiss phenomenon. The full article requires purchase (or subscription) but the abstract of the article is available and summarizes the article:
While assisted suicide (AS) is strictly restricted in many countries, it is not clearly regulated by law in Switzerland. This imbalance leads to an influx of people—‘suicide tourists’—coming to Switzerland, mainly to the Canton of Zurich, for the sole purpose of committing suicide. Political debate regarding ‘suicide tourism’ is taking place in many countries. Swiss medicolegal experts are confronted with these cases almost daily, which prompted our scientific investigation of the phenomenon. The present study has three aims: (1) to determine selected details about AS in the study group (age, gender and country of residence of the suicide tourists, the organisation involved, the ingested substance leading to death and any diseases that were the main reason for AS); (2) to find out the countries from which suicide tourists come and to review existing laws in the top three in order to test the hypothesis that suicide tourism leads to the amendment of existing regulations in foreign countries; and (3) to compare our results with those of earlier studies in Zurich. We did a retrospective data analysis of the Zurich Institute of Legal Medicine database on AS of non-Swiss residents in the last 5 years (2008–2012), and internet research for current legislation and political debate in the three foreign countries most concerned. We analysed 611 cases from 31 countries all over the world. Non-terminal conditions such as neurological and rheumatic diseases are increasing among suicide tourists. The unique phenomenon of suicide tourism in Switzerland may indeed result in the amendment or supplementary guidelines to existing regulations in foreign countries.
The Washington Post story discusses some possibilities for individuals seeking assisted suicide when they are not terminal; traveling while they are still able and having a terminal condition but not yet in the terminal phase were two of the reasons mentioned in the story. The Post story was produced by NewScientist and is also available here.
Tourism to Switzerland for assisted suicide is growing, often for nonfatal diseases
Wednesday, October 1, 2014
A few days ago I blogged about an article in The Atlantic explaining one person's thinking of 75 being his optimal "old age". In that same issue of The Atlantic is another article--about longevity and 100 year olds--what it will mean for society as more of us reach that age. What Happens When We All Live to 100? was published on September 17, 2014.
The article starts with a history of sorts of life expectancies from human origins and notes that
Viewed globally, the lengthening of life spans seems independent of any single, specific event. It didn’t accelerate much as antibiotics and vaccines became common. Nor did it retreat much during wars or disease outbreaks. A graph of global life expectancy over time looks like an escalator rising smoothly. The trend holds, in most years, in individual nations rich and poor; the whole world is riding the escalator.
Projections of ever-longer life spans assume no incredible medical discoveries—rather, that the escalator ride simply continues. If anti-aging drugs or genetic therapies are found, the climb could accelerate. Centenarians may become the norm, rather than rarities who generate a headline in the local newspaper.
The article then moves to a discussion of those institutions intentionally working on increasing life spans, the Buck Institute, the U of Michigan, the U of Texas, UC-San Francisco, and the Mayo Clinic for example. Long-term readers of this blog may also remember a post about CALICO (Google's "spin-off called the California Life Company (known as Calico) to specialize in longevity research."). The article has a fascinating section about the research being done, including some interesting consideration of other life forms that excel in longevity (worm genes, anyone?).
I particular enjoyed reading the quote of one of the leaders in the field in describing the nascent nature of the research. "'[M]edically, we do not know what ‘age’ is. The sole means to determine age is by asking for date of birth. That’s what a basic level this research still is at.'” There seems to be some debate amongst the experts about whether life expectancy will continue to rise at the steady escalator-smooth rate as in years past. The article also mentions some of the theories advanced over time on increasingly longevity: vitamins, low calorie diets, education, exercise, etc.
One section of the article bears significant possibilities for class discussion, the political implications of an older society.
Society is dominated by the old—old political leaders, old judges. With each passing year, as longevity increases, the intergenerational imbalance worsens. The old demand benefits for which the young must pay, while people in their 20s become disenchanted, feeling that the deck is stacked against them. National debt increases at an alarming rate. Innovation and fresh thinking disappear as energies are devoted to defending current pie-slicing arrangements.
The author reveals this is a description of what is actually occurring in Japan. Consider as the author does, what increased longevity may also do to the judicial branch--especially the Supreme Court with lifetime appointments.
This article may be viewed as a bit of a wake-up alarm, although I suspect many of the folks in the US will just hit the snooze button
People’s retirement savings simply must increase, though this means financial self-discipline, which Americans are not known for. Beyond that, most individuals will likely need to take a new view of what retirement should be: not a toggle switch—no work at all, after years of full-time labor—but a continuum on which a person gradually downshifts to half-time, then to working now and then. Let’s call it the “retirement track” rather than retirement: a phase of continuing to earn and save as full-time work winds down.
Widespread adoption of a retirement track would necessitate changes in public policy and in employers’ attitudes. Banks don’t think in terms of smallish loans to help a person in the second half of life start a home-based business, but such lending might be vital to a graying population. Many employers are required to continue offering health insurance to those who stay on the job past 65, even though they are eligible for Medicare. Employers’ premiums for these workers are much higher than for young workers, which means employers may have a logical reason to want anyone past 65 off the payroll. Ending this requirement would make seniors more attractive to employers.
Back to the reasons for increasing longevity. One in the list above, education, seems to have a solid correlation and maybe not as obvious as other reasons that come to mind (vaccines, antibiotics, improved health care, public services, etc.). The author considers the role of education in longevity and examining budget cuts by states, suggests
Many of the social developments that improve longevity—better sanitation, less pollution, improved emergency rooms—are provided to all on an egalitarian basis. But today’s public high schools are dreadful in many inner-city areas, and broadly across states ... Legislatures are cutting support for public universities, while the cost of higher education rises faster than inflation. These issues are discussed in terms of fairness; perhaps health should be added as a concern in the debate. If education is the trump card of longevity, the top quintile may pull away from the rest
The last section of the article hypothesizes on the impact of an aging society if the escalator continues its ascent, achieving perhaps a "grey utopia" of sorts. The article is well worth reading, but it makes me think about how society values, or devalues, aging. Is getting old a challenge or disease to be conquered? For example, the author writes, "[i]f the passage of time itself turns out to be the challenge, interdisciplinary study of aging might overtake the disease-by-disease approach. As recently as a generation ago, it would have seemed totally crazy to suppose that aging could be “cured.” Now curing aging seems, well, only somewhat crazy." Read this article and have your students read it, too.
Thursday, September 25, 2014
Families for Better Care recently released a report card to grade states on nursing homes. Check it out to see if your state gets a passing grade! Families for Better Care is a Florida-based "non-profit citizens advocacy group" devoted to "creating public awareness of the conditions in our nation’s nursing homes and other long-term care settings and developing effective solutions for improving quality of life and care."
Their Nursing Home Report Cards is a "project that analyzes, compares and ranks state’s nursing home quality." The website allows a user to look at overall grades for states in various categories as well look at a specific ranking for a state that includes key findings, grade and rank for 2014 compared to 2013. There is also an interactive map that allows the user to quickly look at a state's "grade." The website also includes a list of the top states and the worst states.
Check it out.
Wednesday, September 24, 2014
In the Washington Post, Columnist Michelle Singletary warns that "Reverse Mortgages Must be Understood to Avoid Regrets." One of the points of her column is that reverse mortgages may not be the most cost-effective plan for aging.
I've begun to worry that the problem is bigger than just mortgages. I worry that too many Americans are making aging at home a fetish, rather than a plan. While heading our Elder Protection Clinic at Penn State Dickinson Law for more than ten years, I often had opportunities to work with my students and their clients on various financial issues related to aging, including reverse mortgages. While I have certainly seen reverse mortgages alleviate specific needs for older adults, I've more often seen that the struggle to stay in the home is, arguably, misguided. What the older person is really hoping for is "not to age any more than necessary." In other words, not to "need" care. Hoping is different than planning.
Some of the wisest people I've known have made "aging in place" a fluid concept, rather than "home"-based. I'm thinking of one of my long influences, Mrs. Parker, who was a salty cowgirl. She'd grown up on horses in the Southwest and married the foreman of one of the biggest cattle ranches in Arizona. One of my favorite stories was about the Parkers' honeymoon, when they rode a string of fresh horses from northern to southern Arizona, breaking the colts along the way.
When ranching was no longer a way of life, the Parkers ran a riding school. Mrs. Parker nominally taught children how to ride horses -- but really she was constantly teaching about life. How well you actually rode the horses was often incidental to her lessons.
One of the things I noticed was that Mrs. Parker planned "aging" for herself and her husband, who was several years older. She knew he was very tied to place, and so they stayed in their home, a modern, but narrow "mobile home" (a/k/a "trailer") for many years beyond what their riding school income required. After his passing, she downsized, from the trailer on 10+ acres of horse-property complete with barns, pastures and riding arenas, to an easy-care home, with a small pasture for a few "old friends."
And then she did the most amazing thing of all. She carefully chose a distant relative as the most trustworthy person from among her large circle of friends and family to serve as her "agent." Mrs. Parker granted this individual Power of Attorney, with an express paragraph authorizing her agent the power to choose a personal care home or other long-term care setting if that became necessary. Which it did. Mrs. Parker lived a very long time as a widow. On one of my last visits with her, she said, poignantly, "I think I remember that I used to know you."
Mrs. Parker's transition from phase to phase was financed by downsizing and by selling their property and her "retirement" home in an orderly way, without a loss of dignity and without a crisis.
We have blogged on several occasions about the issues surrounding caregiving, including the need for caregivers, who provides care, etc. Ever wonder what caregiving costs the caregiver? If I said $5,000 per year, would you say that was more than you thought, or less? What if I told you almost 30% of caregivers spend $10,000 or more? Surprised?
Caring ran a story on the costs of caregiving based on a report they recently compiled. Nearly Half of Family Caregivers Spend Over $5,000 Per Year on Caregiving Costs reports that nearly 50% of the "family caregivers spend more than $5,000 per year on caregiving expenses" (the study considers a family caregiver to be "someone who takes care of a family member or friend, but is unpaid for ... services.... [and] caregiving expenses include out-of-pocket costs for medications, medical bills, in-home care, nursing homes and more." What are the breakdowns for this group of caregivers? "16% spend from $5,000 to $9,999 * 11% spend from $10,000 to $19,999 * 7% spend $20,000 to $29,999 * 5% spend $30,000 to $49,999 * 7% spend $50,000 or more each year." The report includes some other interesting statistics and includes this interesting observation
Caregiving not only has an effect on finances, but it can also impact current employment and future retirement plans, too. One-third of family caregivers (33%) spend more than 30 hours per week on caregiving, making it almost the equivalent of a full-time job. Half of caregivers have made changes to their work schedule to accommodate caregiving, while 30% often arrived late or left early and 17% missed a significant amount of work.
More details about the report and the cost of caregiving are available here
Sunday, September 21, 2014
A more positive way perhaps to word the question might be "how old do you want to live to be?" The Atlantic ran an article that phrased it a bit differently, but still focused on at what age is long lived enough? The author, Ezekiel Emanuel, serves as Director, Clinical Bioethics Department, National Institutes of Health & chairs U. of Pa. Department of Medical Ethics & Health Policy. Why I Hope to Die at 75 appeared in the September 17, 2014 issue. Dr. Emanuel writes about his decision that 75 is his "magic number" and how others have tried to convince him that he should change his mind on this. Why 75? He explains
By the time I reach 75, I will have lived a complete life. I will have loved and been loved. My children will be grown and in the midst of their own rich lives. I will have seen my grandchildren born and beginning their lives. I will have pursued my life’s projects and made whatever contributions, important or not, I am going to make. And hopefully, I will not have too many mental and physical limitations. Dying at 75 will not be a tragedy. Indeed, I plan to have my memorial service before I die. And I don’t want any crying or wailing, but a warm gathering filled with fun reminiscences, stories of my awkwardness, and celebrations of a good life. After I die, my survivors can have their own memorial service if they want—that is not my business.
He makes it clear that he is not supporting physician-aided dying and if he lives past 75, so be it-he's not going to take steps to end his life. Where his wish comes into play is the type of health care he will consent to receiving once he hits that age. He argues that more years don't necessarily mean good years, noting that seventy is NOT the "new fifty". Although older folks may be more active or in better health, there is still a rise in disability which he points to as a reason that the focus shouldn't just be on quantity. He quotes another expert, "health care hasn’t slowed the aging process so much as it has slowed the dying process." The fact of living longer but more incapacitated holds no appeal for him.
Dr. Emanuel looks at examples of health care issues, such as stroke and dementia, using statistics and real stories to illustrate his point. Regarding Alzheimer's, after citing to statistics on the correlation between aging and dementia, he offers
[e]ven if we aren’t demented, our mental functioning deteriorates as we grow older. Age-associated declines in mental-processing speed, working and long-term memory, and problem-solving are well established. Conversely, distractibility increases. We cannot focus and stay with a project as well as we could when we were young. As we move slower with age, we also think slower.
He also discusses the correlation between age and creativity-an inverse relationship it seems--the older you are, the less creative, unless you are one of those rare individuals (we all know of someone quite famous who did something remarkably creative at an advanced age---think Grandma Moses).
As we age, to accommodate our "current selves" we constrict how we live, and as Dr. Emanuel describes, we find ourselves "aspiring to and doing less and less". Yet we each enjoy different things. This calls to mind some of the arguments we hear about the use of substituted judgment in health care/end of life decision-making. We each define a quality of life in different ways, and Dr. Emanuel recognizes that his view may be a bit harsh.
Yet, he contends, it is not about the elder individual racking up the years. There is a burden on the family to be considered, and he says "I will leave aside the very real and oppressive financial and caregiving burdens that many, if not most, adults in the so-called sandwich generation are now experiencing, caught between the care of children and parents. Our living too long places real emotional weights on our progeny."
Back to his plan when he reaches 75. As far as health care, here is his plan: to "stop getting any regular preventive tests, screenings, or interventions ... [and] accept only palliative—not curative—treatments if ... suffering pain or other disability." He makes it clear that this is his view and he respects the views of others that are contrary to his.
This article provides a wealth of topics for discussions with our students and is worthwhile reading, even though you may hold a contrary view to Dr. Emanuel.
Seems like there have been several interesting developments in the past few weeks regarding end of life decision making. Thanks again to Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging. former NAELA president, national expert on end of life issues and all around great guy, for sending me an email about the series run on WNYC public radio. The station ran a 3 part series on "death beds" The first, Death Beds: Terminally Ill, But Constantly Hospitalized aired on September 8, 2014. The second, Death Beds: Too Little, Too Late for Many New Yorkers Seeking Hospice aired the next day, and the third, Death Beds: Living Wills Slowly Take Root aired on September 10, 2014.
Each includes the audio recording as well as the print story. Worth a listen!
Thursday, September 18, 2014
The Institute of Medicine of the National Academies has released a new report on end of life issues. The report, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life was released on September 17, 2014. The report brief offers an explanation of the importance of this new survey, including the sheer numbers of American elders who are living with some limitations on ADLs, chronic illness, cognitive issues and more. As well the report points to issues with the health care system, including problems in accessing care, a lack of palliative care specialists and knowledge about end of life care, and a health care system that works out of sync, with economic incentives. The brief concludes with a call for "person-centered, family-oriented approach that honors individual preferences and promotes quality of life through the end of life [as] ... a national priority." The report is "a comprehensive assessment of the knowledge gaps, structural problems, and financial disincentives that hamper delivery of optimal care and makes cross-sectoral recommendations to achieve compassionate, affordable, sustainable, and effective care for all Americans."
The website also includes a link to key findings, core components, an infographic and a quiz (5 questions) which is suitable for use in class.
Wednesday, September 17, 2014
(Thanks to Judy Stein, Executive Director for the Center for Medicare Advocacy (CMA) for sharing this).
Recently I sat in on a very interesting webinar on The Green House Project. I had heard the phrase "green house" connected to new options for Continuing Care Retirement Communities (CCRCs), but I was not sure what it entailed, and it turns out it is not limited to CCRCs. (When I first heard the term, I confused it with "green designs" intended to lower energy costs, or perhaps some movement to include gardening as therapy.)
Here are a few highlights from what I now understand:
- The Green House Project, about 11 years old, began with development support from a number of funding sources, including the Robert Wood Johnson Foundation, as a new approach to long-term care, requiring a major change in thinking about senior housing design and staffing.
- The hallmark is person-centered care in a cluster setting of no more than 12 individuals, preferably 10.
- Residents have individual bedrooms and bathrooms, thus creating "home" environments.
- Meals are prepared and served in the central space - again, an effort to provide "home" settings.
- No call buttons, no nursing stations, and as few wheelchairs as possible.
- Expanded roles (and enhanced esteem) for staff members; the in-house caregivers or "shahbazim" have a wider range of responsibilities that include cooking and activity planning, and these roles involve specialized training.
Individual facilities can become "trademarked" Green Houses -- although the term has also become something of a trend in the senior housing industry, without being tied strictly to trademarking. The Green House Project, a nonprofit organization, charges fees for formal consultations in the planning process. In some instances, fees may be covered by grants from other foundations.
Here's the link to the Green House Project website, including information on additional upcoming (and free!) webinars on financing, plus opportunities to participate in on-site workshops. I can see these as useful resources for students asked to consider new models for care.
Friday, September 12, 2014
Our friend and health law/elder law rock star, Marshall Kapp, sent me a note about a book review he authored (thanks Marshall) that appears in The Gerontologist Advance Access. The review is of the book, The Rule of Nobody: Saving America from Dead Laws and Broken Government by Phillip K. Howard.
You may be wondering why a blog for elderlawprofs is posting about laws and government regulations. Three words: nursing home regulation. Although a subscription is required to read the full review, an excerpt is available for free, much of which I have reproduced here
The brilliant satirist Jonathan Swift said long ago, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” (Brainy Quote, n.d.). Swift certainly did not intend that remark as a compliment to either laws or cobwebs. Nonetheless, almost all laws originate to accomplish some reasonably defensible public purpose, even though ... poorly drafted, inconsistently ... enforced, and perpetuated beyond ... their original justification ....
In this latest project, Howard despairs that regulation in the United States has veered far from its proper function as a setter of boundaries or parameters within which individuals are empowered... (end of excerpt).
Since Marshall sent me a full copy of the book review, I can explain further what the abstract does not, how the author uses nursing home regulations as an example. Marshall describes this on page 1-2 of his review
One of the primary examples that author Howard utilizes throughout The Rule of Nobody to illustrate his constructive critique about the largely dysfunctional nature of the contemporary American regulatory situation is the overwhelmingly extensive and complex set of formal command and-control rules we have promulgated on the federal and state levels to govern the operation of nursing homes.
Marhsall offers a bit of history as to why we have so many laws and regulations for nursing homes and suggests that now is "the time to seriously contemplate smarter, rather than just bigger, regulation...." (review at page 2). He notes that the author provides examples of when the regulations don't end up benefitting the residents, with current regulations stifling innovation. (review at 3). Marshall concludes his review with this summary
[T]he Rule of Nobody is noteworthy for the nation generally and for long-term care policy-makers particularly... Settling for being “in the ball park” is damning with faint praise, indeed. The only option for many vulnerable individuals is dependence on the benevolence of nursing home owners and workers and lawmakers’ careful guidance. Society owes them a system of oversight and influence that not only aspires to, but effectively achieves, a much loftier standard.
Another one to add to the reading list.
Thursday, September 11, 2014
Judge Geraci of the U.S. District Court, Western District of New York, is the latest judge to address an important topic in Elder Law regarding eligibility for long-term care benefits under Medicaid. The court defines the issue as follows: "When an uncompensated transfer of assets has been made and a [Medicaid] penalty period imposed, how does a partial return of the transferred funds affect the beginning of the penalty period?"
In its August 2014 decision in Aplin v. McCrossen, the court addresses summary judgment motions in two separate cases that were filed on behalf of 80-year-old Florence Aplin and 85-year old Sergio Ciardi, both residents of nursing homes. In one case, for example, the Aplin case, the transfers totaled approximately $450,000; however, approximately $76,000 was later returned by the donees. The hope of the plaintiffs was that "return" of the money would permit them to shorten their penalty periods tied to the original transfers. This approach, when planned in advance, is a post-Deficit Reduction Act technique sometimes known in Elder Law circles as a "partial cure" (as part of "reverse half-a-loaf" gifting).
Judge Geraci denied the relief sought by the plaintiffs. He followed the hardline approach of "nonprecedential" rulings on New Jersey disputes about partial cures, ruling that "return" of money permits the state agency to recalculate the start of the penalty period. The court decided that NY administrative rules do not conflict with federal policy and not only permit but require the state agency to, in effect, restart the penalty period on the ground that the later date is when the "applicant becomes otherwise eligible for Medicaid." This phrase is a key concept in federal Medicaid law. The plaintiffs had argued that phrase applied only to an earlier date, from their original application. Judge Geraci concluded:
"I find no circumstances in this case which indicated that Defendants' interpretation and application of the provisions of [New York administrative directives] contravene Congress' articulated purpose in enacting the Medicaid Act -- to provide medical care, services and supplies for the financially needy. Essentially, the assessment of an applicant's income and resources which results in a determination that such applicant has transferred resources for less than fair market value during the statutory look-back period and that an appropriate penalty period must be imposed, ensures that the applicant has not falsely impoverished himself or herself in order to qualify for medical assistance at public expenses which, by law, is undeserved."
While it is apparent that the New York federal judge was not eager to give applicants any benefit tied to partial cures on transfers, the decision also appears to approve or at least ignore what some would describe as a "perverse effect" of the New York policy. By imposing a new, later "start date" for the ineligibility period following the return, New York can actually impose a penalty that is longer than the original penalty period for the full transfer.
Also at issue in the case was the effect of a series of statements on the federal government's side, including the so-called "McGreal Letter" from CMS that was relied on by the plaintiffs in making the returns. (The court did not expressly address a May 2014 GAO study, where it was reported at page 28 that "[a]ccording to CMS, states can choose whether or not to consider a partial return of transferred assets on Medicaid planning.")
Should there be uniformity among the states, not just on whether but how families can seek any relief from "resource" limits set by federal law? (The GAO study linked above indicates a range of different state-specific options are in play.) The answer to that question may depend on one's point of view.
For more background on the complex interaction between Medicaid applications, ineligibility periods triggered by uncompensated transfers, partial cure attempts and penalty start dates, see ElderLawGuy Jeff Marshall's blog post from 2011.
Tuesday, September 9, 2014
In Psychiatric Times, Dr. Anandhi Narasimhan, California-based and board certified in psychiatry and neurology, compares her professional and personal experiences with grieving following the death of her father. She writes well, and in additional to offering suggestions for coping, she shares this poignant detail from her father's life, which also served to introduce me to a new and intriguing idea, "dialysis at sea." She writes:
"My father was a distinguished scientist who placed value on education. Although he did not believe in lavishness, he always liked to present himself in a well-groomed fashion. I miss his sense of humor, and I have discovered how important such a quality can be when faced with tough times. Remembering his witty repertoire reminds me to celebrate his life.
The picture I have included [with her essay in Psychiatric Times] is from an Alaskan cruise my family took. We had talked about taking a cruise as a family in the past; this had been a dream of my father’s. When he was placed on regular dialysis treatments, he said, 'I guess now I won’t ever be able to go on a cruise.'
It wasn’t until I saw a poster advertising 'Dialysis at Sea' that I realized we could make his dream come true. With some logistical planning, transferring of medical records and such, we were able to take my father on an Alaskan cruise, an experience he both treasured and loved.When I was growing up, my father had a sort of utilitarian view of vacations—we often had to be doing and seeing things; they had to be productive. This vacation was different—it was nice to see him relax and enjoy the awesome beauty of Alaskan glaciers. His smile in the picture is how I would like to remember him: intelligent, positive, humorous, and charming."
Read more of "My Father's Influence" here.