Thursday, November 26, 2015

Good News on Thanksgiving: Gratitude is a Heart-Healthy Habit

NPR's Morning Edition carried a recent story about studies conducted by University of California San Diego researcher Paul Mills that is timely for all of us on this Thanksgiving Day:

A positive mental attitude is good for your heart. It fends of depression, stress and anxiety, which can increase the risk of heart disease, says Paul Mills, a professor of family medicine and public health at the University of California San Diego School of Medicine. Mills specializes in disease processes and has been researching behavior and heart health for decades. He wondered if the very specific feeling of gratitude made a difference, too.


So he did a study. He recruited 186 men and women, average age 66, who already had some damage to their heart, either through years of sustained high blood pressure or as a result of heart attack or even an infection of the heart itself. They each filled out a standard questionnaire to rate how grateful they felt for the people, places or things in their lives.


It turned out the more grateful people were, the healthier they were. "They had less depressed mood, slept better and had more energy," says Mills.

Happy Thanksgiving to all -- all year round!

November 26, 2015 in Consumer Information, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, November 25, 2015

Giving Thanks for Family Caregivers

With Thanksgiving looming, it seemed appropriate to take a moment to say thanks to all the family caregivers.  And on the subject of caregivers, I wanted to share this 5 Facts about Family Caregivers published by Pew Research Center. 

Here are the five facts:

  • In the US there are 40.4 million unpaid caregivers for those 65 and older.
  • The caregivers are most likely between 45-64 years old. 
  • The most common caregiving kids perform helping around the house, doing errands and fixing things around the house.
  • A major segment of caregiving is providing emotional support. 
  • Most kids find helping their parents rewarding, although a few find it stressful.

This is good information to share with your students as well. So read the full document, thank a caregiver and have a Happy Thanksgiving!

November 25, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Retirement | Permalink | Comments (0)

Tuesday, November 24, 2015

A Vivid Example of the Importance of Home Visitor Programs

While preparing for my part of a program this week in England on comparative social care policies, I was encouraged to look at a visiting health services  program in New York City, under the supervision of the Mount Sinai Health System.  Karen Miller, a lawyer and former New York administrative judge who now lives in Florida, told me how helpful it had been to have the assistance of a Mount Sinai social worker to coordinate medication, treatment and doctor's visits for her elderly aunt in New York City. 

Reading about the Mt. Sinai program, in turn, lead me to a short and very moving essay by David Muller, M.D., a physician and Dean for Medical Education at The Icahn School of Medicine at Mount Sinai, based on his home visit in "Haiti." 

Make sure you read your way to page two....there message is eye-opening.

November 24, 2015 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Can a health care instruction be too precise?

We have all heard stories of an elder making the family promise to never admit the elder into a nursing home.  Sometimes, however, people need that level of care, and well-meaning family members are not always able to provide the needed care.  That is part of the story of When to Ignore a Promise to ‘Never Put Me in a Home’ which ran in the New York Times on November 9, 2015. The article features an unidentified patient with a huge bedsore, who had extracted such a promise from her family.  Following that promise to the letter, the family members did their best to care for her, but despite their best efforts, complications occurred.   The doctor authoring the story explained some background

Our patient came from a poor immigrant household without much community support. For years, as she felt herself slipping, she had emphasized over and over again that she never wanted to go into a “home” or be tended by strangers. She wanted to stay at home with her children. Nothing unusual there.

What was unusual was the precision with which her children followed her wishes. As their mother became really confused, then silent, then bedbound, they continued to care for her themselves in the back bedroom.

Turning the focus of the article onto advance directives, and the pros and cons of directives, the doctor writes

[Advance directives] are supposed to give people some control over the future. More often than not, perhaps, the future refuses to be controlled.

Directives may not be detailed enough to help organize a patient’s care. They may be so detailed that doctors and relatives cannot agree on how to interpret the minutiae. Directives may be overlooked in the heat of emergency, ignored out of pure lassitude, or lost somewhere in the closet.

Or, as in our patient’s case, they may be clear and simple, and followed to the letter. And look what happened to her.

The doctor considers health care agents as a better choice, but notes the questions agents must ask principals but frequently don't: "'Do you really want me to do exactly what you are telling me to do? How much wiggle room do I get?'"  This is important for many reasons, not the least of which is what you believe and prefer when you sign your directive may not be the same when it is time to use the directive (what the author refers to as the past you and present you).

Our own patient and her family got all bolluxed up in obligations to their past selves. The bottom line was clear — the patient never would have wanted what she got. But even given that, we wondered, when should her children have changed course?


We had no good answers. Our patient spent a few days in the hospital and then went straight to a nursing home to finish a long course of antibiotics and, presumably, to live there for the duration.

November 24, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Monday, November 23, 2015

Mass. Appellate Court Reinstates Legal Malpractice Verdict Following Flawed Medicaid-Planning Advice

In October 2015, the Massachusetts Court of Appeals addressed the question of whether there were damages flowing from a lawyer's Medicaid advice to an older couple. The lawyer had counseled that, for Medicaid planning reasons, the couple should not retain a life estate in a house purchased with their money but held in the name of their adult children. The court found the surviving mother suffered real damages, even if eviction from the house by her children was unlikely.  Key allegations included:

Thirteen years later, in July of 2007, the Brissettes [the parents] and two of their four children, Paul Brissette and Cynthia Parenteau, met at [Attorney] Ryan's office to discuss the Brissettes' desires to sell the South Hadley home and to buy property located in Springfield. They discussed the prospect of putting the Springfield property in the names of Paul and Cynthia. Ryan told the Brissettes that if they reserved life estates in the Springfield property, they could be ineligible for Medicaid if they applied any time within five years of getting the life estates. He also told them that if they took life estates in the Springfield property, there could be a Medicaid lien against that property when they died. There was evidence that the Brissettes asked about “protection,” but Ryan told them that he did not feel that the Brissettes needed protection because they could trust their children to do what they wanted them to do. In reliance on Ryan's advice, the Brissettes decided that the Springfield property would be bought with their money  but put in Paul's and Cynthia's names, and that the Brissettes would not have life estates in the Springfield house.

After her husband's death. Mrs. Brissette concluded she wished to own "her" home in her own name, but the children declined to re-convey the property to her. 

During the malpractice trial, Lawyer Ryan conceded his advice about the effect of a life estate on Medicaid and/or a Medicaid lien was wrong, and expert witnesses also testified that the incorrect Medicaid advice was "below the standard of care applicable to the average qualified attorney advising clients for Medicaid planning."

Continue reading

November 23, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, November 22, 2015

Understanding the 2016 Medicare Part B premiums

Prior to the Bipartisan Budget Act of 2015 , all indications pointed to a pretty significant increase in the 2016 Part B premiums for Medicare. However, the increase was much less than expected in part because of the compromise in the Budget Bill. The Kaiser Family Foundation released a very helpful issue brief on November 11, 2015, explaining  the developments and the impact on beneficiaries.  What's in Store for Medicare's Part B Premiums and Deductible in 2016, and Why? explains the premium increase, the hold harmless provision and a $3 repayment surcharge to make up the deficit Part B will incur in 2016 because of the lower premium. ("includes a $3 repayment surcharge, which will be added to monthly premiums over time to cover the cost of the reduced premium rate in 2016.")

The brief explains the hold harmless provision, identifies the categories of beneficiaries who will have to pay the higher premiums (and why) and the amount of premiums paid by higher income beneficiaries. The brief also offers a projection for 2017 and concludes that but for Congressional intervention, "in the face of flat Social Security benefits and rising out-of-pocket costs, many people on Medicare could have greater difficulty affording their medical care costs in the coming year."

November 22, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

£2.9Bn Funding Gap for UK Care Homes May Cause Half to Close

As I prepare to speak at a program at the University of Leeds this week on comparative social care systems and legal policies, a headline in The Guardian caught my eye: "Half of UK Care Homes Will Close Unless £2.9bn Funding Gap Is Plugged, Warn Charities."  The Guardian reports:

In a joint letter, 15 social care and older people’s groups urge Osborne to use his spending review on Wednesday to plug a funding gap that they say will hit £2.9bn by 2020. They warn that social care in England, already suffering from cuts imposed under the coalition, will be close to collapse unless money is found to rebuild support for the 883,000 older and disabled people who depend on personal care services in their homes.


[Chancellor of the Exchequer] Osborne has already decided to use his overview of public finances to give town halls the power to raise council tax by up to 2% to fund social care, in a move that could raise up to £2bn for the hard-pressed sector. However, the signatories of the letter, such as Age UK and the Alzheimer’s Society, want him to commit more central government funding to social care.


The looming £2.9bn gap “can no longer be ignored”, the letter says. “Up to 50% of the care home market will become financially unviable and care homes will start to close their doors,” it adds. “Seventy-four per cent of domiciliary home-care providers who work with local councils have said that they will have to reduce the amount of publicly funded care they provide. If no action is taken, it is estimated that this would affect half of all of the people and their families who rely on these vital services.”


Osborne’s endorsement of a hypothecated local tax to boost social care comes after intense lobbying behind the scenes and public warnings from bodies such as the King’s Fund health thinktank.

The authors warn the "NHS will be overwhelmed by frail elderly people" in search of care. I was struck by implications that without funding reallocation, England will face staggering hordes of near zombies.  There is irony in this imagery, of course, because we spend a heck of a lot of real money on best-selling books, movies and top-rated television shows about fictional zombies, while failing to come to terms with the funding needs for real people.  See e.g., this estimate that "Zombies Are Worth Over $5 billion to Economy."

November 22, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International | Permalink | Comments (0)

Friday, November 20, 2015

Filial Friday: Court Finds Less Than "Ideal" Childhood Not Enough to Release Duty to Support Indigent Parent

It is, perhaps, a mark of the growing acceptance of filial support obligations in Pennsylvania courts -- although not necessarily equating with understanding by the general public in Pennsylvania -- that a recent appeal from a filial support ruling resulted merely in a "nonprecedential" opinion by the appellate court, one that adopts the findings of the lower court.

In Eori v. Eori, 2015 WL 6736193, (Aug. 7, 2015) the Pennsylvania Superior Court affirmed the trial court's award of $400 per month in support with a short opinion.  This ruling obligates one son, the defendant, to contribute financially towards the care of his 90-year old mother, being provided in the home of another brother. The incorporated findings of fact, from the lower court, track a sad family story.  One point in dispute was whether the mother's alleged actions during the son's childhood constituted the defense of "abandonment":

Defendant’s next error complained of on appeal pertains to the second defense Outlined in 23 Pa. C.S.A. Section 4603(2)(ii), which negates the obligation of filial support when it is established that the parent seeking support abandoned the child during a ten year period of the child’s minority. In this case, the Defendant argued that he was abandoned and raised as error number six that the trial court failed to consider said testimony. The term “abandoned” is not defined in the act itself, However, the Custody Act at 23 Pa.C.S.A. Section 5402 defines “abandoned” as “left without provision for reasonable and necessary care or supervision.” Defendant testified that he did not have the greatest family growing up and he wanted to get away. . . . He testified that his grandmother cared for him more than his Mother; however, they were never far apart because he testified that his grandmother either lived with Mother or beside Mother. . . .  Although he testified that Mother was abusive, left and caused them to move many times, and was either gone or fighting, he never established that she left for a ten year period. He did not provide details or time periods on any of the testimony presented.

The lower court concluded:  "Therefore, it was not clear from [son's] testimony that Mother ever left for a ten year period without provision for his reasonable and necessary care or supervision. Although it may not have been an ideal childhood, there was no evidence of abandonment to release Defendant from his obligation to support Mother."

Procedural note:  In Pennsylvania, trial judges have the option of waiting to write "opinions" explaining their "orders" until after a notice of appeal is filed by a party.  Pennsylvania Rule of Appellate Procedure, Rule 1925. Further, the trial judge can also require the appealing party to file a "statement of errors," in advance of the trial judge's obligation to write an opinion.  I don't know how many states use this process, but certainly by comparison to the Federal Rules of Civil Procedure, it is a rather unique opportunity for judges to write an opinion, as did the trial judge in the Eori case, that, in essence, expresses views on the merits of the "appeal." 

For those gathering together as family for Thanksgiving next week, perhaps this case history provides lessons.

November 20, 2015 in Current Affairs, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, November 19, 2015

They're Out...CMS releases 2016 premium and co-pay amounts

CMS has released the 2016 amounts for deductibles, premiums, and co-pays for Medicare A and B.  The Inpatient Hospital Deductible and Hospital and Extended Care Services Coinsurance Amounts  are available in the Federal Register here. (The inpatient deductible is $1,288 for 2016). The Part B amounts are available here.  Remember because there is no COLA this year, the hold harmless provision keeps the Part B premium the same as last year for many Medicare Beneficiaries.  For those not protected by the hold harmless provision, their Part B premiums will be $121.80+ $3.  Don't forget that higher income beneficiaries will pay a higher premium, referred to as the income-related monthly adjustment.  The higher premium amounts can be found here as well.

November 19, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Other | Permalink | Comments (0)

Yours, Mine or Ours: Who is Responsible for Social Care of Older Persons?

On November 26, 2015, the University of Leeds' School of Law in England will be host to a program on "Yours, Mine or Ours: Who is Responsible for Social Care of Older Persons?"  I'm very pleased to be part of the panel, under the leadership of Professor Subhajit Basu, PhD.  We will use a research report we completed with colleagues in 2015 for the Commissioner of Older People in Northern Ireland (COPNI), to offer comparative international examples of legislation and public policy initiatives that support the wide array of potential care needs for older persons.  We'll be looking beyond the needs for health care. 

One likely focus of the discussion is a proposal for a state-supported home visits by trained professionals, including social work professionals, for individuals age 75 or older, with a goal of providing advance assistance to the individual or family in meeting needs.  The proposal now under consideration in Northern Ireland has roots in other jurisdictions we studied, including Denmark. 

In Denmark, one of the inspirational leaders for "preventative home visits" is Mikkel Vass, M.D. at the University of Copenhagen. Beginning in 1998, Danish laws established an obligation for municipalities to offer "all citizens 75 years and older two annual preventative home visits."   A great deal of freedom to design the content of the home visits was given to the municipalities, but the goals are:

  • to support personal resources and networking; and
  • to offer social support, thereby preserving functional ability

In his study of 15+ years of home visit operations, Dr. Vass concludes that with a nationally-supported home visitation program:

  • Functional decline can be prevented;
  • Education of professionals makes a difference to the interview success;
  • Interdisciplinary education makes a greater difference to the program success;
  • To maintain effectiveness, education must be ongoing and based on simple messages and professional routines that respect local healthcare cultures; and
  • Operation can be cost-neutral.

Cost neutrality -- that will be important to every element of modern social care programs -- including home visits.

November 19, 2015 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Retirement | Permalink | Comments (1)

Wednesday, November 18, 2015

SNF rooms to hot for residents

Living in a Sunbelt state, I know how hot it can get in the summer months.  I recently ran across a July 2015 decision from HHS' Departmental Appeals Board (DAB) reviewing the imposition of a "per instance" monetary penalty CMS assessed against an Arizona SNF.

CMS’s allegations in this case are predicated on complaints that portions of Petitioner’s facility – including several residents’ rooms – were uncomfortably hot. Those allegations are supported by the complaints of several residents and by temperature readings taken by a surveyor on July 16, 2014. Readings taken by the surveyor showed portions of some of the residents’ rooms being as hot as 90 degrees Fahrenheit.... Such temperatures plainly exceed what any reasonable person would consider to be "comfortable." On their face they comprise violations of 42 C.F.R. § 483.15(h)(6).

After discussing the ways the surveyor and the SNF measured the temperatures inside the SNF, the ALJ in the opinion notes

The overwhelming evidence is that rooms at Petitioner’s facility were uncomfortably hot due to the failure of the facility’s air conditioning system. Arizona in July is a very hot place. Building interiors in that State that are not adequately air conditioned can become dangerously hot. As Petitioner admits, the air conditioning in its facility had failed to work adequately in July 2014. The failure prompted residents to complain that their rooms had become uncomfortably hot.... The staff took various measures to address the failure of the air conditioning system, including closing curtains in residents’ rooms and conducting random temperature checks....

"The evidence that residents were not comfortable is overwhelming, beginning with these residents’ complaints and further evidenced by the fact that Petitioner’s own staff recognized that there were problems with overheating in the residents’ rooms."  The ALJ upheld the penalty.



November 18, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicare | Permalink | Comments (0)

Health Affairs Publishes Report on New Models for Long-Term Services and Supports

Coinciding with the presentation yesterday at the National Press Club in Washington, D.C., the journal Health Affairs released a report  by Melissa Favreault, Howard Gleckman, and Richard W. Johnson, titled "Financing Long-Term Services And Supports: Options Reflect Trade-Offs For Older Americans And Federal Spending."  Noting the history of weak buy-in for existing long-term care insurance products, the authors' study, funded by the SCAN Foundation, AARP and LeadingAge, looks to future alternatives.  From the abstract:

To show how policy changes could expand insurance’s role in financing these needs, we modeled several new insurance options. Specifically, we looked at a front-end-only benefit that provides coverage relatively early in the period of disability but caps benefits, a back-end benefit with no lifetime limit, and a combined comprehensive benefit. We modeled mandatory and voluntary versions of each option, and subsidized and unsubsidized versions of each voluntary option. We identified important differences among the alternatives, highlighting relevant trade-offs that policy makers can consider in evaluating proposals. If the primary goal is to significantly increase insurance coverage, the mandatory options would be more successful than the voluntary versions. If the major aim is to reduce Medicaid costs, the comprehensive and back-end mandatory options would be most beneficial.

The full article is linked here. Several related pieces are also on the Health Affairs website.  Much to read and evaluate here and helpful for those planning spring Elder Law courses. 

November 18, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1)

Sunday, November 15, 2015

Wearable Technology-Personal "airbags"

One of my regular "must reads" is Aging In Place Technology Watch. I love reading about all the new cool tech and how companies are innovating to make lives better for us as we age.  So catching up on reading emails, I was reading the post on the LeadingAge2015 Annual meeting.  The technologies reported in this post were fascinating, but the one that really caught my attention was HipHope.   Looking at the website, the best way I can describe the technology is wearable air bags.  

The website describes the device. "Hip-Hope™ is a revolutionary active hip protector device, providing unprecedented fall impact absorption effectiveness, combined with highly reliable real-time fall detection capability.  Hip-Hope™ unique achievements are a result of “out-of-the-box” design concepts and technological innovations."

According to the website, the device deploys in the blink of the eye, and it looks compact and easily wearable.  Check out the video demonstrating it.

November 15, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink | Comments (0)

Thursday, November 12, 2015

Upcoming: Health Affairs Briefing on Financing Long-Term Services & Supports

On Tuesday, November 17, from 9 to 11 a.m., the National Press Club in Washington, D.C., will be the site for a fascinating mix of industry experts, government leaders and commentators interested in aging  to talk about "Financing Long-Term Services and Supports." The event will spotlight a forthcoming article in the monthly journal, Health Affairs.

A forthcoming "Web First" article in Health Affairs, "Financing Long-Term Services And Supports: Options Reflect Trade-Offs For Older Americans And Federal Spending," examines how policy changes could expand insurance's role in financing these needs. The study, by authors Melissa M. Favreault, Howard Gleckman and Richard W. Johnson of the Urban Institute, contains several policy modeling options to address the long-term care financial crisis affecting millions of Americans, as well as baseline findings on the long-term care landscape. The work was funded by The SCAN Foundation, AARP, and LeadingAge.

The panel speakers scheduled to appear include:

  • Bruce A. Chernof, M.D., President and CEO, The SCAN Foundation
  • Melissa M. Favreault, Senior Fellow, Income and Benefits Policy Center, Urban Institute
  • Richard Frank, Assistant Secretary for Policy Evaluation, US Department of Health and Human Services
  • Chris Giese, Actuary, Milliman, Inc.
  • Richard W. Johnson, Senior Fellow, Income and Benefits Policy Center, and Director, Program on Retirement Policy, Urban Institute
  • Larry Minnix, President and CEO, LeadingAge
  • Al Schmitz, Principal, Consulting Actuary, Milliman, Inc.
  • Eileen Tell, Long Term Care Group
  • Debra Whitman, Executive Vice President, Policy, AARP

More information on registration hereSpecial thanks to my Dickinson Law Colleague and health care expert, Jennifer Davis-Oliva, for the reminder of this event. 


November 12, 2015 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

New England Journal of Medicine Addresses "Epidemic" of Elder Abuse

Renowned Cornell educators and specialists in geriatric medicine, Mark S, Lachs, M.D., and Karl A. Pillemer, PhD, have an important review essay in the current issue of the New England Journal of Medicine on "Elder Abuse" (linked above).  The authors articulate roles for physicians and health care staff as the first line of help for many older persons who are victims of elder abuse, including the "virtual epidemic" of financial exploitation.  From the introduction:

In the field of long-term care, studies have uncovered high rates of interpersonal violence and aggression toward older adults; in particular, abuse of older residents by other residents in long-term care facilities is now recognized as a problem that is more common than physical abuse by staff. The use of interdisciplinary or interprofessional teams, also referred to as multidisciplinary teams in the context of elder abuse, has emerged as one of the intervention strategies to address the complex and multidimensional needs and problems of victims of elder abuse, and such teams are an important resource for physicians. These new developments suggest an expanded role for physicians in assessing and treating victims of elder abuse and in referring them for further care.


In this review, we summarize research and clinical evidence on the extent, assessment, and management of elder abuse, derived from our analysis of high-quality studies and recent systematic studies and reviews of the literature on elder abuse.

One of the perhaps surprising observations in the article is that the "young-old" actually have a higher potential to become victims of abuse than the "old-old," in part because they are most likely to be living under the control of a spouse or adult child, the most often-identified perpetrators.

Further, the authors advise that "the most important tasks for the physician are to recognize and identify elder abuse, to become familiar with resources for intervention that are available in the local community, and to refer the patient to and coordinate care with those resources."  The article includes community services and organizations that may provide help to victims.

I was especially interested to see the authors' thoughts on the importance of interdisciplinary teams, especially given my own law school's current involvement in creating a Medical Legal Partnership Clinic.  The authors write:

The most promising response to the complex nature of cases of elder abuse has been the development of interprofessional teams. Evidence suggests that interprofessional teams, also referred to as multidisciplinary teams, consisting of physicians, social workers, law-enforcement personnel, attorneys, and other community participants working together in a coordinated fashion, are the best practical approach to assisting victims.

Our thanks to "devoted reader" Professor Dick Kaplan, University of Illinois Law, for providing us with early notice of this important article.

November 12, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, November 10, 2015

New York Court Addresses "Medicaid Transfer" Issue in Context of Continuing Care Community (CCRC)

On November 6, 2015 the appellate division of New York's Supreme Court addressed an issue long brewing in some states, whether Continuing Care Retirement Communities (CCRCs) can insist on "private pay" for skilled nursing care despite a resident's "eligibility" for Medicaid under state and federal laws.  In Good Shepherd Village at Endwell, Inc. v. Yezzi, the unanimous panel affirmed summary judgment in favor of the CCRC on the payment question.

The decision highlights Congressional DRA action in 2005/6 that amended federal Medicaid law to expressly permit CCRCs to offer contracts that require residents to "spend on their care resources declared for the purposes of admission before applying for medical assistance."  The DRA amendment was a response to the industry's lobbying efforts, following a 2004 decision by a Maryland appellate court in Oak Crest Village, Inc. v. Murphy that held such a contractual provision violated the federal Nursing Home Residents' Bill of Rights, viewed as prohibiting nursing homes from conditioning admission on guarantees of private pay.

In the New York case history, the couple apparently signed two separate documents, beginning with a "contract" at the time of their entrance into the CCRC that required them to pay both an entrance fee ($143,850) and "basic monthly fees" of approximately  $2,550 to cover the cost of independent living.  Any need for skilled nursing care would be assessed "an additional charge."  That contract provided that residents could "not transfer assets represented as available" for less than fair market value.  When the wife needed skilled care, the couple signed a second document, referred to in the case as an "admission agreement," for treatment in the CCRC's skilled nursing unit. The "admission agreement" reportedly required the Yezzis to "pay for, or arrange to have paid for by Medicaid" all services provided by the CCRC.

Continue reading

November 10, 2015 in Consumer Information, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Monday, November 9, 2015

A Pragmatic Look at Health Care "Billing Codes" for Advance Care Planning

Professor Janet Dolgin from Hofstra University has a very good article in the October 2015 issue of ABA's The Health Lawyer on "Reimbursing Clinicians for Advance-Care Planning Consultations: The Saga of a Healthcare Reform Provision."  The article offers facts, analysis, historical perspective and opinion about the need to approve payment to health care providers in order for them to be able to engage fully with clients and their families in careful conversations about advance care planning, including end-of-life decisions.  The article is concise, but the downside for interested readers is the digital version of the article is currently behind a pay-wall for ABA Health Care Section members only. 

To stimulate your interest in tracking down a hard copy, perhaps through your law colleagues or local law libraries, here are a few highlights.  Professor Dolgin writes:

Advance care planning is part of good healthcare.  Thus, paying clinicians to talk with patients about advance care planning makes sense:  it enhances advance care planning and thereby serves to effect good healthcare.  "If end-of-life discussions were an experimental drug," writes Atul  Gawande in his recent book, Being Mortal, "the FDA would approve it." Yet efforts to provide for reimbursement to clinicians for time and attention given to advance-care-planning conversations with Medicare patients have been stymied since 2009 (at least until quite recently) by the politics of healthcare reform....


Published, peer-reviewed research shows that ACP [Advance Care Planning] leads to better care, higher patient and family satisfaction, fewer unwanted hospitalizations, and lower rates of caregiver distress, depression and lost productivity....


In July 2015 CMS accepted the recommendation [supported by AARP, the AMA and others identified in the article] and opened the proposal to [pay health care clinicians for such consultations] to a two month-comment period in its proposed physician payment schedule for 2016.... If the proposed rule is accepted by CMS, payments for advance-care planning consultations are slated to begin in early January 2016. 

The article demonstrates well the tension between the use of administrative law options to achieve what Congress finds unable or unwilling to address as a matter of Congressional laws.  Of course, administrative processes can gore the ox of either side on a politically-charged debate. 

Perhaps I am alone in being sad that it takes billing codes approved by insurance providers and CMS to achieve appropriate consultation between health care staff and families about advance decision-making.  But Professor Dolgin's article is a realistic explanation for exactly why that "is" necessary. 

November 9, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink

Wednesday, November 4, 2015

Medicaid and People with Dementia

The Kaiser Family Foundation's Commission on Medicaid and the Uninsured released an issue brief on Medicaid’s Role for People with Dementia.

Consider this:

Almost one-half (46%) of nursing facility residents and about one in five (21%) seniors living in the community has probable or possible dementia, a syndrome characterized by a chronic, progressive decline in memory and other cognitive functions, such as communication and judgment. People with dementia often have complex medical and behavioral health needs, and many rely on family caregivers to provide assistance with self-care and other daily activities. As dementia advances, paid care may be needed. Most people with dementia have Medicare, but due to high out-of-pocket costs and lack of long-term services and supports (LTSS) coverage, low-income people with disabilities resulting from dementia may need Medicaid to fill in the coverage gaps. Medicaid plays an important role in providing LTSS and is increasingly focused on efforts to help seniors and people with disabilities remain in the community rather than reside in institutions.

Given the expected growth of the elderly population over the coming decades and barring medical breakthroughs, a larger share of Americans likely will have dementia, which has implications for Medicaid coverage, delivery system design, financing, and quality monitoring. This fact sheet describes Medicaid’s role for people with dementia who live in the community, highlighting common eligibility pathways, beneficiary  characteristics, covered services, health care spending and utilization, and key policy issues.

The issue brief discusses several issues and then concludes

Improving medical care and LTSS for people with dementia is likely to remain a major public health issue as well as the focus of ongoing medical research in the coming decades as policymakers, families, and other stakeholders consider cost-effective options to meet the needs of this vulnerable and expanding population. Medicaid beneficiaries with dementia have fewer financial resources to contribute toward the cost of care and are significantly more likely to use home-based services than people without Medicaid. People with dementia will likely need paid care as their functioning declines, and in the absence of other viable public or private financing options, Medicaid will continue to be the nation’s primary payer for LTSS.

November 4, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

National Continuing Care Residents Assoc. Affiliates with LeadingAge

For several years, the National Continuing Care Residents' Association (NaCCRA) has hosted annual meetings in conjunction with the LeadingAge meeting, combining its own business with the opportunity for members to participate in a broad array of educational and general sessions offered under the umbrella of LeadingAge, thus providing residents with direct insights into provider-side views of the industry. 

State Chapter Representatives at NaCCRA Meeting October 2015This year, the NaCCRA meetings on  October 31-November 1, 2015 in Boston, offered a packed agenda of topics that attracted strong attendance by officers, board members, and representatives of more than a dozen state resident chapters (photo), as well as interested individual residents.  And anyone who thinks older adults aren't tech savvy can think again, as several members were participating remotely and the sessions are recorded for later viewing through the NaCCRA website.

High on the agenda this year was finalization of a formal affiliation agreement between NaCCRA and LeadingAge.  

The prospects for affiliation troubled some within NaCCRA, especially those who became active in NaCCRA precisely because of concern about the direction taken by certain owners or management of CCRCs in recent years.  They saw LeadingAge as the voice of "providers" only, and perhaps even as representing "the enemy."  They were worried residents might be silenced by the affiliation. Others in NaCCRA have witnessed the ever-broadening membership of LeadingAge and noted the organization's strong interest in state and federal regulation, laws and tax policies affecting senior living operations. They felt that NaCCRA needed to be inside the tent to have an effective voice in future changes that can affect residents.  

Within NaCCRA, the vote in favor of affiliation lead to a change at the leadership level, with President Dan Seeger (Pennsylvania) and at least one other board member stepping down from their positions in late summer 2015. 

Past President Ruth Walsh (Connecticut, center in photo below) had several weeks as Interim President.  During the October 31 meeting, new officers were elected, including Rev. Bob Nicholson (Washington, below left) as incoming President, Walt Boyer (North Carolina) as President Elect, and Jack Cumming (California) as Treasurer, joining William Ratcliff as Secretary. NaCCRA Meeting October 2015 

At the meeting the results of a recent survey of the more than 2,000 paid members of NaCCRA (including those representing affiliated state NaCCRA chapters or resident councils, thus giving NaCCRA an interest group of at least 38,000 residents) was announced.  The survey provides a prioritized action list for upcoming projects. Advocating for clearer written statements of "resident rights" (matched with better understanding of resident responsibilities) came out on top of the list of objectives for the coming year

November 4, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Sunday, November 1, 2015

Nite of the Living Will

My friend Jim Pietsch at the U. of Hawaii elder law program offers this clever annual event for elder individuals to encourage the completion of advance directives.   The University of Hawai'i Elder Law Program (UHELP) at the William S. Richardson School of Law held its annual "NITE" OF THE "LIVING WILL" on October 29, 2015. Here is the description of the program from their website.

Deciding...”What If?”
During this daylight presentation of our annual Halloween event, the University of Hawai`i Elder Law Program will present a talk about medical treatment decision-making and advance care planning  to include  informed consent/informed refusal, individual instructions for health care, durable powers of attorney for health care, comfort care only-DNR bracelets/necklaces and Provider Orders for Life-Sustaining Treatment (POLST).

You will have the opportunity to Decide What If? you are unable to communicate your wishes for end of life care. If you still have an old “Living Will” or if you are unsure of how end-of-life decisions will be made for you, come and find out how to make an advance directive or other documents that will help make sure your wishes regarding health care decisions are honored.

The public, especially kupuna, family caregivers, service providers, students and faculty are invited. Tea and little treats will be served. Donations to cover the cost of this hydration and nutrition accepted.

This is such a creative program and kudos to Jim for all of his work!

November 1, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)