Friday, January 20, 2017

Update on D.C. Physician-Aided Dying Law

We blogged previously that D.C.'s mayor signed the physician-aided dying bill that was then sent to Congress. According to a January 9, 2017 article in the Washington Post, Congressman plans to block D.C. law to let terminally ill patients end their lives, "Representative Jason Chaffetz (R-Utah) said ...  he’ll use rarely invoked congressional authority to block a new law passed by the D.C. Council to allow doctors to help end the lives of terminally ill patients in the city"  by the end of January.  The article notes that it's rare for Congress to block a D.C. law.   On January 12, 2017 Senator Lankford and Representative Wenstrup (Oklahoma and Ohio respectively) introduced resolutions to block the law.

Stay tuned.

January 20, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Is Age 70.5 No Longer an Appropriate Age to Compel IRA Distributions? What Sayeth Donald Trump?

Under long-standing IRS rules, IRAs and similar retirement accounts created with tax deferred income are generally subject to "required minimum distributions" when the account holder reaches age 70 and a half.  As the IRS.gov website reminds us:

  • You can withdraw more than the minimum required amount.
  • Your withdrawals will be included in your taxable income except for any part that was taxed before (your basis) or that can be received tax-free (such as qualified distributions from designated Roth accounts).

As the Wall Street Journal recently reported, as baby boomers are now reaching that magic age of 70 1/2+, there will be huge mandatory transfers of savings, creating taxable income, even if they don't actually need the retirement funds yet.

Boomers hold roughly $10 trillion in tax-deferred savings accounts, according to an estimate by Edward Shane, a managing director at Bank of New York Mellon Corp. Over the next two decades, the number of people age 70 or older is expected to nearly double to 60 million—roughly the population of Italy.

The account holders may not actually "need" the money in their early 70s, an age now often seen as "young" for retirement, and they may still be in high tax brackets, thus cancelling the original reasons for the savings and deferral.  The rules were made when average lifespans were shorter. 

On average, men and women who turned 65 in 2015 can expect to live a further 19 and 21.5 years respectively, according to the U.S. Social Security Administration’s most recent life-expectancy estimates; those post-65 expectancies are up from 15.4 and 19 years for those who turned 65 in 1985.

....[D]istributions are expected to grow exponentially over the next two decades because of a 1986 change to federal law designed to prevent the loss of tax revenue. Congress said savers who turn 70½ have to start taking withdrawals from tax-deferred savings plans or face a penalty. Specifically, retirees who turn 70½ have until April of the following calendar year to pull roughly 3.65% from their IRA and 401(k) funds, subject to slight differences in the way the funds are treated by the Internal Revenue Service. Then they must withdraw an increasing portion of their assets every year based on IRS formulas. The rules don’t apply to defined-benefit pensions, where retirees get automatic distributions.

There is a 50% penalty for failure to make required minimum withdrawals.  And not all retirees are aware of the consequences of failing to make with withdrawals, especially when accounts were created originally by a spouse who is no longer alive or is unable to manage the account personally. From the Wall Street Journal article:

Bronwyn Shone, a financial adviser in Pleasanton, Calif., said many of her clients aren’t aware of their legal obligation to take distributions. “I think some people thought they could let the money grow tax-deferred forever,” she said.

Certainly the federal government wants -- and an argument can certainly be made that it "needs" -- more tax revenues, but if the goal of the permitted deferral is to encourage saving for the the "real" needs of retirement, which can include disability, health care, long-term care, and other "late in aging" needs, is it still realistic to set the mandatory threshold for withdrawals at age 70.5?  For example, Donald Trump is just today commencing his "new job" at age 70 and a half, and yet he could be subject to the RMDs for any IRAs. Maybe this is a financial issue that might interest the new Trump Administration? 

For more, read Pulling Retirement Cash, but Not by Choice, by WSJ reporters V. Monga and S. Krouse (paywall protected article from 1/16/17).

January 20, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0)

Thursday, January 19, 2017

NYT: Who Will Care for the Caregivers?

The New York Times has a recent article that resonates with me.  I am spending my sabbatical time in Arizona in order to be of more help to my sister with our parents who are both in their 90s. Neither my sister or I have children and we sometimes question what will happen with us if we reach our parents' age with similar needs. Here's an excerpt from the piece that gets right to the point:

While the demand for caregivers is growing because of longer life expectancies and more complex medical care, the supply is shrinking, a result of declining marriage rates, smaller family sizes and greater geographic separation. In 2015, there were seven potential family caregivers for every person over 80. By 2030, this ratio is expected to be four-to-one, and by 2050, there will be fewer than three potential caregivers for every older American.

For more, read the thoughtful essay Who Will Care for the Caregivers? by Dr. Dhruv Khullar, a resident physician at Massachusetts General Hospital and Harvard Medical School. 

January 19, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Retirement, Statistics | Permalink | Comments (0)

Wednesday, January 18, 2017

February 10: Mid-Atlantic Health Law Works-in-Progress Retreat at Seton Hall Law School

Seton Hall Law School's Center for Health & Pharmaceutical Law & Policy notified us of the inaugural Mid-Atlantic Health Law Works-in-Progress Retreat, which will be held on February 10, 2017, at Seton Hall Law School in Newark, New Jersey, from 9:00-4:30, followed by a reception.  The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting. 

This year's retreat will consist of in-depth discussions of the following draft papers:

  • Julie Agris (Stony Brook), "A Legal Standard to Empower the Delivery of High Quality Patient Care: The 'Professional Judgment' Standard in the HIPAA Privacy Rule"

Commentators: Gaia Bernstein (Seton Hall), Robert Field (Drexel)

  • Adam Kolber (Brooklyn), "Supreme Bioethical Bullshit"

Commentators: Stephen Latham (Yale), Kim Mutcherson (Rutgers)

  • Craig Konnoth (University of Pennsylvania), "Side Effects"

Commentators: Lewis Grossman (American), Jennifer Herbst (Quinnipiac)

  • Gwendolyn Roberts Majette (Cleveland Marshall), "The ACA's New Governing Architecture and Innovative State Delivery System Reform Initiatives in the Age of a New Presidency"

Commentators: John Cogan (Connecticut), Lauren Roth (NYU)

  • Govind Persad (Johns Hopkins), "The Law and Ethics of Paying Patients"

Commentators: Christina Ho (Rutgers), John Jacobi (Seton Hall)

  • Kristen Underhill (Columbia), "Righting Research Wrongs: Institutional Uses of Alternative Dispute Resolution in Human Subjects Research"

Commentators: Scott Burris (Temple), Carl Coleman (Seton Hall)

Seton Hall Professor Carl Coleman advises the retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the mid-Atlantic area. If you are interested in attending, RSVP to Carl Coleman at mailto:carl.coleman@shu.edu by February 3.

Draft papers will be circulated by the last week of January, and all attendees will be expected to have read the papers before the retreat.

Intriguing titles and interesting topics. Our thanks to Carl for alerting us to the opportunity to participate in the discussions. 

 

January 18, 2017 in Current Affairs, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Tuesday, January 17, 2017

Mobile Palliative Care for Homeless

Kaiser Health News ran a story about a project that provides palliative care to individuals who are homeless and terminally ill. Mobile Team Offers Comfort Care To Homeless At Life’s End covers a pilot project in Seattle. "Since January 2014, the pilot project run by Seattle/King County Health Care for Homeless Network and UW Medicine’s Harborview Medical Center has served more than 100 seriously ill men and women in the Seattle area, tracking them down at shelters and drop-in clinics, in tents under bridges and parked cars." The project is funded through 2017 and is designed to avoid unneeded or unwanted care at the end of life while giving people who are homeless input in their care.  The care providers arrange for the clients to get medical treatment (through Medicaid or pro bono care), follow up with patients, help patients make decisions and care for them so they don't die alone.

The mobile program has some advantages over other existing programs, such as going to where the patients are located and  the providers are "more likely to engage the hardest-to-reach patients, those distrustful of medical care and outsiders...."  Although the medical treatment is important, so far, the team is finding that coordination of care is a huge benefit of the mobile program.  Mobile palliative care programs do exist worldwide, but aren't prevalent in the U.S. "Worldwide, there are only a few other mobile palliative care programs, all outside the U.S. The closest one in North America is the Palliative Education and Care for the Homeless program — known as PEACH — in Toronto."

January 17, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

UCLA Prof. Allison Hoffman on "Reimagining the Risk of Long-Term Care"

With the new Presidential administration ahead, many of us are asking what government policies or programs will be "re-imagined."  With changes on the horizon, an especially interesting perspective on long-term care is offered by UCLA Law Professor Allison Hoffman with her recent article, "Reimagining the Risk of Long-Term Care,"  published in the Yale Journal of Health Policy, Law & Ethics. From the abstract:

While attempting to mitigate care-recipient risk, in fact, the law has steadily expanded next-friend risk, by reinforcing a structure of long-term care that relies heavily on informal caregiving. Millions of informal caregivers face financial and nonmonetary harms that deeply threaten their own long-term security. These harms are disproportionately experienced by people who are already vulnerable--women, minorities, and the poor. Scholars and policymakers have catalogued and critiqued these costs but treat them as an unfortunate byproduct of an inevitable system of informal care.
 
 
This Article argues that if we, instead, understand becoming responsible for the care of another as a social risk--just as we see the chance that a person will need long-term care as a risk--it could fundamentally shift the way we approach long-term care policy.
 
Professor Hoffman examines various ways in which society expects third parties, including but not limited to family members as "next friends," to provide unpaid assistance and/or out-of-pocket dollars to disabled adults or seniors needing help.  She writes, for example, about filial support laws used sporadically to compel certain family members to finance care.  She observes that often, without direct personal experience, society members are unaware of the real costs of long-term care, both financially and emotionally, writing: 
 
As one informal caregiver and scholar described: “I feel abandoned by a health care system that commits resources and rewards to rescuing the injured and the ill but then consigns such patients and their families to the black hole of chronic ‘custodial’ care.” What next friends do for others is herculean, both in terms of the time spent and the ways that they offer assistance.
 
Recommended reading for the new year.  

January 17, 2017 in Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, January 16, 2017

Health & Safety Checks by Meals on Wheels?

So Meals on Wheels has an idea. We all know the dangers of isolation and how important it can be to check in with an elder on a regular basis.  Kaiser Health News explains the idea, Meals On Wheels Wants To Be The ‘Eyes and Ears’ For Hospitals, Doctors. "Meals on Wheels, which has served seniors for more than 60 years through a network of independent nonprofits, is trying to formalize the health and safety checks its volunteers already conduct during their daily home visits to seniors. Through an ongoing campaign dubbed “More Than a Meal,” the organization hopes to demonstrate that it can play a critical role in the health care system."

Many nonprofits face challenges, including funding challenges, and Meals on Wheels is no exception. There are competitors now,  less funding and increasing demand for services.  So how would this work?  "Meals on Wheels America and several of the local programs around the country have launched partnerships with insurers, hospitals and health systems. By reporting to providers any physical or mental changes they observe, volunteers can help improve seniors’ health and reduce unnecessary emergency room visits and nursing home placements, said Ellie Hollander, CEO of Meals on Wheels America."  It's a very cost-effective system according to the article and has the potential for bigger savings in health care costs.

There has already been some research done on the effectiveness and advantages of Meals on Wheels. Consider this:

Studies conducted by Brown University researchers have shown that meal deliveries can help elderly people stay out of nursing homes, reduce falls and save states money.

Kali Thomas, an assistant professor at Brown University School of Public Health, estimated that if all states increased the number of older people receiving the meals by 1 percent, they would save more than $100 million. Research also has shown that the daily meal deliveries helped seniors’ mental health and eased their fears of being institutionalized.

There are  projects taking place, with one between Meals on Wheels, Brown U and West Health Institute.  Another is with Meals on Wheels,  Johns Hopkins Bayview Medical Center and Meals on Wheels of Central Maryland, which will attempt "to keep seniors at home and reduce their need for costly health services after hospitalization. The idea is to have trained volunteers report red flags and ensure, for example, that patients with congestive heart failure are weighing themselves regularly and eating properly."  The Maryland project is being run by Dr. Dan Hale (friend and former colleague at Stetson U).

Sounds like a great idea! 

January 16, 2017 in Consumer Information, Current Affairs, Food and Drink, Health Care/Long Term Care, Other | Permalink | Comments (0)

Friday, January 13, 2017

Should All States Permit Use of Medicaid for Assisted Living?

The plight of 108-year-old Ohio resident Carrie Rausch, facing the prospect of losing her spot in an assisted living community because she's run out of money, is generating a lot of attention in the media, including People magazine.  Some states, such as New Jersey, have expanded the options for public assistance in senior living -- beyond nursing homes -- to permit eligible individuals to use Medicaid for residential care.  Assisted living is usually much less expensive than a nursing home; but the pool of individuals who would might opt for assisted living rather than the "dreaded" nursing home is also larger.   Ohio, along with many states, hasn't gone the AL route:  

If Rausch can’t raise the money needed, she’ll have to leave what has been her home for the past three years and move into a nursing home that accepts Medicaid.

[Daughter] Hatfield worries about the toll the move would take on her mom, who is more lively and active than most people 10 or even 20 years her junior. . . . “We need a miracle,” she says.

Ms Rausch's adult daughter -- herself in her late 60s -- has turned to GoFundMe to attempt to raise the $40k needed for a year of continued residence, and as of the date of this Blog post, more than 700 donors have responded.  

At a deeper level, however, this story reveals important questions about public funding for long-term care on a state-by-state basis. This funding issue is repeating itself throughout the country for seniors much younger than the frugal and relatively healthy Carrie Rausch.  On a national basis, GoFundMe "miracles" seem an impractical solution.

January 13, 2017 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 12, 2017

Superagers, the New Super Heroes?

Who doesn't want to be a super "something"? How about a Superager? What is a Superager anyway? (and no, capes and tights are not needed). According to a recent story in the NY Times, Superagers are "those whose memory and attention isn’t merely above average for their age, but is actually on par with healthy, active 25-year-olds." How to Become a ‘Superager’ reports on a study of the brains of Superagers to figure out what makes them so.

How do you become a Superager?  Well, the researchers aren't quite ready to tell us that yet. 

Of course, the big question is: How do you become a superager? Which activities, if any, will increase your chances of remaining mentally sharp into old age? We’re still studying this question, but our best answer at the moment is: work hard at something. Many labs have observed that these critical brain regions increase in activity when people perform difficult tasks, whether the effort is physical or mental. You can therefore help keep these regions thick and healthy through vigorous exercise and bouts of strenuous mental effort.

There is a downside to becoming a Superager, according to the story.  The author explains

The road to superaging is difficult, though, because these brain regions have another intriguing property: When they increase in activity, you tend to feel pretty bad — tired, stymied, frustrated. Think about the last time you grappled with a math problem or pushed yourself to your physical limits. Hard work makes you feel bad in the moment. The Marine Corps has a motto that embodies this principle: “Pain is weakness leaving the body.” That is, the discomfort of exertion means you’re building muscle and discipline. Superagers are like Marines: They excel at pushing past the temporary unpleasantness of intense effort. Studies suggest that the result is a more youthful brain that helps maintain a sharper memory and a greater ability to pay attention.

This means that pleasant puzzles like Sudoku are not enough to provide the benefits of superaging. Neither are the popular diversions of various “brain game” websites. You must expend enough effort that you feel some “yuck.” Do it till it hurts, and then a bit more.

The author points to the desire of Americans to pursue happiness, which leads us to" consistently sidestep the discomfort of mental effort or physical exertion, this restraint can be detrimental to the brain. All brain tissue gets thinner from disuse. If you don’t use it, you lose it."

So shall we all work on becoming Superagers?  The author closes the article with this bit of advice, "make a New Year’s resolution to take up a challenging activity. Learn a foreign language. Take an online college course. Master a musical instrument. Work that brain. Make it a year to remember."

Also remember, capes and tights are optional!

 

January 12, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink | Comments (0)

Should Home Care Providers Be Permitted to Seek Broad Waivers of Liability from Elderly Clients? (And if so, are there clear standards for a knowing waiver?}

Recently an attorney wrote to me about an elderly client who had been victimized by a home care worker hired through an agency; the allegations included physical abuse, intimidation, identity theft, failure to provide care, theft of personal possessions and false imprisonment.  Not too surprisingly, the specific worker was long gone once the harm was discovered by non-resident family members.  Significantly, the family also learned that the mother had signed the agency's standard contract withtwo pages of single-spaced type that covered everything from hours to wages, and which included a numbered paragraph purporting to grant a broad waiver of the agency's liability for actions of the individuals sent to the home of the elderly client. Key language provided:

"CLIENT and/or CLIENT's agent/responsible party agrees on behalf of CLIENT, CLIENT's agent/responsible party, beneficiaries, heirs, and/or family/household members to release [agency], owner, officers, directors, agents and employees, office, office directors, office employees, and Caregiver from any and all liability, potential or real, for any injury, claim, damage, or loss, including attorney's fees, incurred in connection with the performance of this agreement and all services, incurred in connection with the performance of this agreement and all services performed by Caregiver for the CLIENT, including but no limited to assisting CLIENT with his/her medications and providing transportation to Client or any member of CLIENT's family/household, except for gross negligence...."  

The attorney asked about any state regulatory language that would limit liability waivers or require, at a minimum, bold faced type or large type for such attempted waivers when used with elderly or disabled clients. Those receiving home care may be uniquely vulnerable to unwitnessed abuse, and also less likely to report abuse because of the fear of the "worse" alternative, a nursing home.   In the state in question, regulations  require certain disclosures to be made in a form "easily read and understood," but the regulations don't specifically address (nor prohibit) waivers of the company's liability. See e.g. PA Code Section 611.57.    

What about in your state? Is there relevant regulation? Alternatively, is there a "best" (or at least better) practice in the home care industry when seeking contractual waivers of liability?  The issue reminds me of an article written in the mid-1990s by Charlie Sabbatino discussing the one-sided nature of nursing home contracts in the absence of careful regulation protecting patient rights.  He wrote:

Broadly worded waivers of liability for personal injury are likely to be unenforceable and void as a matter of public policy in most states. Residents are most commonly asked to consent to absolute waivers for injury caused by other patients or by independent contractors in the facility, or for injury occurring outside of the facility, such as on a field trip. Federal and state nursing home laws have not squarely addressed personal injury waivers. even though the whole thrust of the regulatory framework is expressly intended to set standards for the protection of residents' health, safety, and welfare.

And the subtitle of the article on Nursing Home Contracts is "Undermining Rights the Older Fashioned Way." 

January 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, January 11, 2017

"The Aging Brain" as a Focus for Collaborative Analysis and Research

I'm much overdue in writing about a terrific, recent workshop at Arizona State University's Sandra Day O'Connor College of Law on "The Aging Brain." For me it was an ideal gathering of disciplines, including experts in neurology, psychology, health care (including palliative care and self-directed aid-in-dying), the judiciary, and both practitioners and academics in law (not limited to elder law).  Even more exciting, that full day workshop (11/18/15) will lead into a public conference, planned for fall 2017.  

Key workshop moments included:

  • Preview of a potentially ground-breaking study of early-onset Alzheimer's Disease (AD) centered on a family cluster in the country of Columbia with a genetic marker for the disease and a high incidence of onset.  By "early onset," we're talking family members in their 40s.  The hope is that by studying the bio-markers in this family, that not only early onset but later-in-life onset will be better understood. Eric Reiman, with professional affiliations with Banner Health, Arizona State University and University of Arizona, spoke at the workshop, and, as it turned out, he was also featured on a CBS 60 Minutes program aired a short time later about the family-based study.  Here's a link to the CBS transcript and video for the 60 Minutes program on "The Alzheimer's Laboratory."  
  • Thoughtful discussion of the ethical, legal and social implications of dementia, including the fact that self-directed aid-in-dying is not lawful for individuals with cognitive impairment. Hank Greely from Stanford University Law and Medical Schools, and Professor Betsy Grey for ASU's Sandra Day O'Connor College of Law led discussions on key issues.  As biomarkers linked to AD are identified, would "you" want to know the outcome of personal testing?  Would knowing you have a genetic link to AD change your life before onset? 
  • Overview of recent developments in "healthy" brain aging and so-called "anti-aging" treatments or medications, with important questions raised about whether there is respected science behind the latest announcement of "breakthroughs." Cynthia Stonnington from the Mayo Clinic and Gary Marchant from ASU talked about the science (or lack thereof), and Gary raised provocative points about the role of the FDA in drug approvals, tracking histories for so-called off label uses for drugs such as metformin and rapamycin.  

I very much appreciate the opportunity to participate in this program, with special thanks to Betsy Grey and federal Judge Roslyn Silver for making this possible.  I've also enjoyed serving as occasional guest in Judge Silver's two-semester Law and Science workshop with ASU law students. Thank you! For more on the Aging Brain programming at ASU, see here.    

January 11, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Science | Permalink | Comments (0)

Tuesday, January 10, 2017

Medicare Overpayments

Kaiser Health News ran a story last week on the failure of CMS to recover significant overpayments from some Medicare Advantage plans. Medicare Failed To Recover Up To $125 Million In Overpayments, Records Show explains

An initial round of audits found that Medicare had potentially overpaid five of the health plans $128 million in 2007 alone, according to confidential government documents released recently in response to a public records request and lawsuit.

But officials never recovered most of that money. Under intense pressure from the health insurance industry, the Centers for Medicare and Medicaid Services quietly backed off their repayment demands and settled the audits in 2012 for just under $3.4 million — shortchanging taxpayers by up to $125 million in possible overcharges just for 2007.

The story reports the overpayments occur for various reasons, including billing errors and from "overcharge[ing] Medicare, often by overstating the severity of medical conditions...."  The story reports on CMS audits of some health plans, events that led up to the settlement of the overpayment claims and a May, 2016 GAO report.

January 10, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Oregon Supreme Court Rejects Medicaid Estate Recovery for Asset Transfers between Spouses

In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014).  The high court concluded:

Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.

Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case.  His firm's Blog further reports on the effects of the final ruling in Oregon:

"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."

January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 9, 2017

Diving Deeper into Approval of Short-Term Annuities in Medicaid Planning

3L Villanova Law Student Jennifer A. Ward has an interesting analysis of the Third Circuit's decision in Zahner v. Sec'y Pa Dept. of Human Servs., 802 F.3d 497 (3d Cir. 2015), published in a recent issue of the Villanova Law Review.  She begins with a summary of the Zahner decision and an outline of her analysis:

[T]he Third Circuit examined whether short-term annuities, a specific instrument used in Medicaid planning, qualified for the DRA's safe harbor provision. If so, assets used to purchase short-term annuities would be sheltered from factoring into individuals' eligibility for Medicaid. Holding that short-term annuities can qualify for protection, the Third Circuit's decision signifies that the DRA did not completely foreclose the “use of short-term annuities in Medicaid planning.”
 
This Casebrief argues that the Third Circuit's Zahner decision is a win for elder law attorneys and their clients, as it solidifies the viability of the use of short-term annuities in Medicaid planning. Part II examines how individuals take part in Medicaid planning, including a discussion of the DRA and the use of annuities in planning. Part III presents the facts of Zahner and reviews the Third Circuit's analysis. Part IV analyzes the Third Circuit's decision to approve the use of short-term annuities. Part V advises elder law practitioners on the use of short-term annuities going forward. Part VI concludes by discussing the long-term viability of short-term annuities.
 
The author recognizes the potential for Congress to change the outcome of the Zahner ruling: 
 
After Zahner, elder law practitioners are free to use short-term annuities while guiding their clients through the Medicaid planning process. The Third Circuit will not bar the use of qualified short-term annuities in Medicaid planning, instead leaving any change in policy to Congress. Therefore, until Congress acts, short-term annuities are a viable planning tool in the Third Circuit for the foreseeable future.For people who wish to leave assets to loved ones, Zahner presents good news. Rather than causing people to exhaust their savings on long-term care, Zahner provides individuals greater ability to protect resources through Medicaid planning.
 
The title of the article is Doctor's Orders: The Third Circuit Approves Short Term Annuities As a Viable Planning Tool, and is available through subscription on Westlaw and Lexis and appears to be forthcoming on a digital commons platform via the Villanova Law Review. 

January 9, 2017 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Friday, January 6, 2017

Alzheimer's: Greater Impact on Women?

I was reading a recent blog post on the Scientific American  that featured a guest blog by Dr. Snyder, the Senior Director of Medical and Scientific Operations, Medical and Scientific Relations for the Alzheimer's Association. The blog, Alzheimer's Falls More Heavily on Women Than on Men, opens with two vignettes of women who early-onset Alzheimer's.

Alzheimer’s dementia disproportionately affects women in a variety of ways. Compared with men, 2.5 times as many women as men provide 24-hour care for an affected relative. Nearly 19 percent of these wives, sisters and daughters have had to quit work to do so. In addition, women make up nearly two-thirds of the more than 5 million Americans living with Alzheimer’s today.

The blog explains that researchers are studying this to see if they can find the answer, but longevity alone isn't likely it.  The post also reports on the work of the Alzheimer's Association including a funding initiative for 9 research projects. Some are looking at lifestyle factors including stress and education. The article concludes with a discussion of the role and importance of advocacy

January 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Science | Permalink | Comments (0)

Thursday, January 5, 2017

Medicaid Pocket Primer

Kaiser Health News has released a Medicaid Pocket Primer. The Primer succinctly explains what is Medicaid, its structure, those covered, services, the impact of the ACA, how beneficiaries access care, the program's impact on beneficiaries' ability to get care, its costs, and financing.  The conclusion to the primer explains

Medicaid provides comprehensive coverage and financial protection for millions of Americans, most of whom are in working families. Despite their low income, Medicaid enrollees experience rates of access to care comparable to those among people with private coverage. In addition to acute health care, Medicaid covers costly long-term care for millions of seniors and people of all ages with disabilities, in both nursing homes and the community. Medicaid funding is a major source of support for hospitals and physicians, nursing homes, and jobs in the health care sector. Finally, the guarantee of federal matching funds on an open-ended basis permits Medicaid to operate as safety net when economic shifts and other dynamics cause coverage needs to grow. Because proposals to restructure the Medicaid program could have significant consequences for enrollees and the health care system, the potential implications of such proposals warrant careful consideration.

A pdf of the primer is available here.

January 5, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Wednesday, January 4, 2017

Just a Reminder-6th Annual Health Law Conference at FSU

I'd posted about this previously (but had the wrong date, sorry Marshall) so just a reminder, Save the Date: February 13, 2017, the 6th Annual Health Law Conference at Florida State University. This year's conference is titled Patients as Consumers: The Impact of Health Care Financing & Delivery Developments on Roles, Rights, Relationships & Risks.  Topics include Evidence-based Medicine & Shared Decision-making, Impact of Cost Containment Initiatives on Patient Rights and Provider Liabilities, and Patient Populations at Particular Risk of Not Controlling Their Own Medical Choices.

Registration is free unless seeking CLE credits.  For more information or registration, click here.

January 4, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Sunday, January 1, 2017

More on Family Caregivers

The New England Journal of Medicine published Supporting Family Caregivers of Older Americans on December 28, 2016.  The authors were part of a committee of "the National Academies of Sciences, Engineering, and Medicine Committee" dealing with family caregivers of elders.  The report that resulted, according to the authors, "raises serious concerns about the current and future state of this caregiving in the United States."The authors include in their definition of family caregivers "relatives, partners, friends, or neighbors who provide help because of a personal relationship rather than financial compensation."

Here's a highlight

Our report challenges public and private stakeholders to transform policies and practices to make the delivery of person- and family-centered care a reality. We found that appropriate engagement and tailored support of family caregivers have the potential to improve caregivers’ experiences and quality of life and facilitate shared decision making while enhancing the quality of care provided to older adults and reducing the use of unnecessary services. But the United States currently lacks the infrastructure and knowledge base that practitioners and policymakers need to make support of caregiving families a reality. Moving to person- and family-centered care will require coordinated changes in several areas.

A pdf of the story is available here.

January 1, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink

Thursday, December 29, 2016

Revised Nursing Home Regs-Resources Part II

The National Consumer Voice for Quality Long-Term Care has issued its second summary of the revised nursing home regulations. Summary of Key Changes in the Rule-Part II is a 19 page summary of phase 1 that covers changes to the resident assessment, comprehensive person-centered care planning, quality of life, quality of care, doctors and nursing services, behavioral health services, pharmacy services, lab, diagnostic and radiology services, dental, nutrition, and specialized rehab services, administration (the section that includes the ban on pre-dispute arbitration agreements), quality assurance, physical environment, controlling infection, and training (which includes training on recognizing, reporting and preventing abuse, neglect and exploitation). Read this, bookmark it, print it and save it!

December 29, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink

Tuesday, December 27, 2016

DC Aid-in-Dying Legislation

The mayor of DC signed aid-in-dying legislation for the District which now has to be sent to Congress for a 30 day review period. Bowser quietly signs legislation allowing terminally ill patients to end their lives explains that the law is based on Oregon's statute. Congress has 30 days to approve or override it, Washington, D.C., Approves Aid-in-Dying Bill.

December 27, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink