Monday, October 22, 2018
CNBC recently highlighted comparative inflation numbers on assisted living costs and other benchmarks that probably won't help you sleep better tonight:
This retirement living expense has nowhere to go but up.
The annual cost of a private room in a nursing home has cracked the six-figure mark, according to Genworth Financial.
The national annual median cost of a private room in a nursing home is $100,375, the insurer found in its 2018 Cost of Care study.
Overall, the rising cost of care has outpaced inflation. The Consumer Price Index for all urban consumers was 2.1 percent for the first half of 2018. The annual median cost of a room at an assisted living facility grew by 6.67 percent between 2017 and 2018. Meanwhile, the cost of a shared room in a nursing home jumped by 4.11 percent.
Thursday, October 18, 2018
The Pennsylvania Legislature did not reach either SB 884, involving major changes in adult guardianship laws, or HB 2291, that would have blocked state authority to investigate complaints about the scope of services provided in senior public housing or independent living units in continuing care retirement communities (CCRCs), before adjourning to permit legislators to return to their districts for the final push before the November 2018 elections. It is unlikely that either bill will receive further consideration this session. New legislation would need to be introduced in the next legislative session, for fresh consideration in 2019.
One bill that did pass both Houses on October 18 in the waning hours of the 2017-18 session is HB 2133, Printer's No. 3107 to establish a Kinship Caregiver Navigator Program within the PA Department of Human Services as "a resource for grandparents who are raising their grandchildren" outside of the formal child welfare system. The online navigator program is to be created by an outside contractor. The fiscal note attached to the bill projects an estimated cost of about $2.2 million, with about half of the funds coming from federal sources.
Monday, October 15, 2018
The New York Times ran an article on the demand for nursing home beds. In the Nursing Home, Empty Beds and Quiet Halls opens by explaining that a once vibrant facility now stands closed due to a drop in demand. According to the article, "[t]he most recent quarterly survey from the National Investment Center for Seniors Housing and Care reported that nearly one nursing home bed in five now goes unused. ... Occupancy has reached 81.7 percent, the lowest level since the research organization began tracking this data in 2011, when it was nearly 87 percent." The occupancy rate has been trending downward; concomitantly facilities close, and according to the article, somewhere between 200-300 annually close. The article points out what you are likely thinking-with the number of baby boomers wouldn't the demand be increasing rather than decreasing?
The article hypothesizes as to why this may be occurring and suggests:
Increased regulations and more financial belt-tightening
Hospitals' use of observation status,which thus affects Medicare coverage for subsequent SNF care.
More surgeries on an out-patient basis
Increasing number of Medicare Advantage plans.
- Increased competition through other housing options
- The shift to Medicaid covering care in the community, with "Money Follows the Person [having] moved more than 75,000 residents out of nursing homes and back into community settings."
The article speculates whether this trend will reverse itself once the boomers start reaching 80 and beyond. The article also discusses whether the lower demand provides more options for those in need of nursing home care.
Sunday, October 14, 2018
A couple of weeks ago I blogged about "reminiscence therapy" used for people with dementia. The New Yorker has added to the literature on this topic with the recent article, The Comforting Fictions of Dementia Care.
The article describes different efforts by facilities, from common rooms designed to resemble eras gone by giving residents baby dolls that simulate real babies. For those who ask routinely to go home, "many nursing homes and hospitals have installed fake bus stops. When a person asks to go home, an aide takes them to the bus stop, where they sit and wait for a bus that never comes. At some point, when they are tired, and have forgotten what they are doing there, they are persuaded to go back." One company based in Boston used technology to simulate conversations. Known as "Simulated Presence Therapy" this system "mak[es] a prerecorded audiotape to simulate one side of a phone conversation. A relative or someone close to the patient would put together an “asset inventory” of the patient’s cherished memories, anecdotes, and subjects of special interest; a chatty script was developed from the inventory, and a tape was recorded according to the script, with pauses every now and then to allow time for replies. When the tape was ready, the patient was given headphones to listen to it and told that they were talking to the person over the phone." The article notes that those with short term memory loss can listen to the tape routinely. Technology has made simulations even more realistic and interactive, down to "footage of a passing scene [giving] the impression of movements."
The article features details of various enterprises and highlights at least one facility's efforts. It's definitely worth reading.
Thanks to my colleague, Professor Bauer, for sending me the link.
Thursday, October 11, 2018
Bloomberg Law News ran a recent story about litigation in California. California Veterans Sue for Right to Die in State Home reports on a suit recently filed concerned vets living in a state veterans home.
Terminally ill California veterans wishing to use the state’s assisted dying law must be evicted or leave the state veterans’ home, a lawsuit challenging a regulation prohibiting the use said.
California is among a handful of states that permit assisted suicide. The California Department of Veterans Affairs (CalVet) argues the regulation banning assisted suicide was necessary to avoid violating the 1997 federal Assisted Suicide Funding Restriction Act, the lawsuit said. Veterans contend the agency’s argument is unsupported by law or fact and, in fact, harms terminally ill residents.
The suit was filed the first week of October in trial court in Alameda County. The plaintiffs include 2 veterans groups, a vet from Vietnam, and a non-veteran spouse. Defendants include the California Department of Veterans Affairs and the California Veterans Board.
October 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Previously we have blogged about the need for caregivers and how that role typically falls to family members. What about those "elder orphans" or "solo agers" who don't have kids or family to fill that role? Kaiser Health News addressed that issue in the article, Without Safety Net Of Kids Or Spouse, ‘Elder Orphans’ Need Fearless Fallback Plan. “[E]lder orphans” (older people without a spouse or children on whom they can depend) and “solo agers” (older adults without children, living alone), [are expected] to move through later life without the safety net of a spouse, a son or a daughter who will step up to provide practical, physical and emotional support over time [and almost]22 percent of older adults in the U.S. fall into this category or are at risk of doing so in the future, according to a 2016 study." Not only are there a fair amount of folks in this category according to the survey, "70 percent of survey respondents said they hadn’t identified a caregiver who would help if they became ill or disabled, while 35 percent said they didn’t have “friends or family to help them cope with life’s challenges.” This means these folks are not prepared for aging, according to one expert quoted in the article. The article discusses the survey results and provides so suggestions for experts on how these elder orphans or solo agers can prepare.
But the key here is to be proactive-there is no magic wand here folks.
Wednesday, October 10, 2018
Pennsylvania's Legislature Stalls Guardianship Reform But Moves Forward on Controversial "Protection" Bill
As recent readers of the Elder Law Prof Blog will know, the Pennsylvania legislature is in the waning days of the 2018 legislative year. Despite strong support for basic reforms of adult guardianship laws, the legislature has once again stalled action on Senator Greenleaf's guardianship reform package, Senate Bill 884. Apparently the latest delay arose when one senator objected to a provision requiring criminal background checks for proposed new guardians, because of his own experiences as a guardian for an adult child.
Guardianship reform has been on the legislative docket since at least 2014 when the Pennsylvania Supreme Court's Elder Law Task Force issued its comprehensive report recommending much needed changes, including higher standards for appointed guardians. But this one senator's late-breaking concerns triggered another delay. Similar legislation was approved by the Senate in the previous legislative term, only to be stalled that time in the House.
Thus, the contrast with another bill affecting seniors, one that is rushing through the Pennsylvania Legislature in 6 months, is particularly dramatic. House Bill 2291, as most recently amended in Printer's Version No. 3917, was introduced for the first time in April 2018 and cleared the Pennsylvania House with a unanimous vote on October 9, 2018.
The bill has been cast as "protection" of seniors against unwanted intrusions on their privacy by government investigators. Sounds like a commendable purpose. But the much larger purpose seems to be about protecting "providers" of certain types of housing for seniors, including "independent living units" in continuing care retirement communities (CCRCs, also called Life Plan Communities) and publically-funded "senior multifamily housing units," from investigation by Pennsylvania authorities where there are potential concerns about suitability of that type of unit for the needs of particular seniors, especially those at risk of self-neglect or third-party exploitation because of dementia. One member of the House, a legislator from Westmoreland County where a CCRC has been investigated (apparently the only such investigation in the state), has been quite successful in attracting support for his bill to prevent such investigations from happening in the future.
Now the Pennsylvania Senate will have all of three days -- its last three working days in 2018 -- to consider HB 2291 for the first time.
Has HB 2291 been carefully considered by all the stakeholders, including seniors and their families? It may not matter when the train is running at full steam.
October 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 9, 2018
As Hurricane Michael is bearing down on the Florida panhandle, it bears mentioning that we are still in hurricane season down here in the Gulf coast and that natural disasters can occur anywhere at any time. So this article in the Tampa Bay Times giving an update about the SNFs in Florida complying with the generator law was timely. As hurricane nears, most long-term care facilities haven’t finished backup power plans notes that even as Hurricane Michael has the Florida panhandle in its path, "[m[ore than half of the 412 assisted-living facilities and nursing homes have yet to implement their emergency power plans, after receiving extensions from the state to comply."
A review of data maintained by the Agency for Health Care Administration shows that, in 33 counties encompassing the western half of the state south to Hernando County and east to Putnam County, more than half of the 412 assisted-living facilities and nursing homes have yet to implement their emergency power plans. Nearly all of those facilities have been granted extensions, many through the end of the year, citing regulatory delays and equipment and contractor shortages.
What are these non-compliant facilities likely to do, especially with landfall imminent? The article notes that "those facilities are turning to temporary generators, portable coolers and sometimes evacuations to keep residents safe — just as they have in years past before the rules were approved." The area projected for Hurricane Michael has a number of facilities that have received exemptions or are still in the process of complying with the rule. The article discusses what the state and regulators are doing and how facilities are preparing.
We have to hope for the best at this point. I think everyone is well served by asking long term care facilities about their disaster plans. The rest of us in Florida are keeping an eye on Michael's path and thinking about those in it.
According to a recent Kaiser Health News article, Medicare Advantage Plans Shift Their Financial Risk To Doctors, Medicare Advantage (MA) Plans pay medical groups "a fixed monthly payment ... to cover virtually all of their members’ health needs, including drugs and physician, hospital, mental health and rehabilitation services."
This model — known as “full-risk” or “global risk” — is increasingly used by Medicare plans such as Humana and UnitedHealthcare to shift their financial exposure from costly patients to WellMed and other physician-management companies. It gives the doctors’ groups more money upfront and control over patient care. ... As a result, they go to extraordinary lengths to keep their members healthy and avoid expensive hospital stays.
As the article notes, there is a financial incentive for the health care providers with this model, and experts disagree whether it results in better care or less care for patients. As the article notes, beneficiaries choose an MA plan and pick doctors within the plan, often without knowing if the MA plan has delegated oversight of the beneficiaries' health to these physician groups. And the impact of this full-risk approach should not be understated:
Nearly one-third of the 57 million Medicare beneficiaries are covered by private Medicare Advantage plans — an alternative to government-run Medicare — and federal officials have estimated that the proportion will rise to 41 percent over the next decade. The government pays these plans to provide medical services to their members.
The “global risk” system has been used in South Florida and Southern California since the late 1990s and nearly half of Medicare Advantage members in those regions get care in the model. The use has spread further in the past two years as large physician companies have become more common, and about 10 percent of Medicare Advantage plan members across the nation are in them now, health consultants say.
Under the “global risk” arrangements, the health plans give the physician companies the bulk of their Medicare funding when they take on the mantle of being financially responsible for all patient care.
Keep an eye on this -- it's important.
Friday, October 5, 2018
Dwindling Numbers in Traditional Skilled Care Facilities Have Implications for Other Forms of Senior Living
The New York Times tracks more demographic information about occupancy in skilled care facilities:
For more than 40 years, Morningside Ministries operated a nursing home in San Antonio, caring for as many as 113 elderly residents. The facility, called Chandler Estate, added a small independent living building in the 1980s and an even smaller assisted living center in the 90s, all on the same four-acre campus.
The whole complex stands empty now. Like many skilled nursing facilities in recent years, Chandler Estate had seen its occupancy rate drop.
“Every year, it seemed a little worse,” said Patrick Crump, chief executive of the nonprofit organization, supported by several Protestant groups. “We were running at about 80 percent.”
Staff at the Chandler Estate took pride in its five-star rating on Medicare’s Nursing Home Compare website. But by the time the board of directors decided it had to close the property, only 80 of its beds were occupied, about 70 percent.
Revenue from independent and assisted living couldn’t compensate for the losses incurred by the nursing home.
As seniors elect to stay "at home" and as families struggle to make that happen, we are seeing ever evolving concepts in how to provide appropriate care and companionship. For more read, In the Nursing Home, Empty Beds and Quiet Halls.
Thursday, October 4, 2018
The call to action explains that "Medicare as we know it is under attack. Current efforts and proposals will privatize Medicare and increase costs. Against the wishes of most Americans, some lawmakers want to cut Medicare benefits, driving up costs to you, and making health care and prescription drugs even less affordable." (emphasis in the original). The website covers "why now", stories, facts, "take action" and has a link to donate. The "take action" page includes questions to ask Congressional candidates and an action kit, among other tools. Test your Medicare IQ on the facts page. And if you want to feel the urgency, look at the countdown clock to the midterm elections on the home page.
Monday, October 1, 2018
Last week, CMS released an updated fact sheet on the outlook for Medicare Advantage plans for 2019. 2019 Medicare Advantage and Part D Prescription Drug Program Landscape provided some udpates:
offered in 2019:
- Enrollment in Medicare Advantage is projected to be at an all-time high in 2019 with 22.6 million Medicare beneficiaries. This represents a projected 2.4 million (11.5 percent) increase from 20.2 million in 2018. Based on projected enrollment, 36.7% of Medicare beneficiaries will be enrolled in Medicare Advantage in 2019.
- Medicare Advantage premiums, on average, have steadily declined since 2015 from the actual average premium of $32.91. For 2019, CMS estimates the Medicare Advantage average monthly premium will decline by $1.81 to $28.00 from 2018.
- Approximately 83 percent of Medicare Advantage enrollees will have the same or lower premium in 2019 if they continue in the same plan. About 26 percent of enrollees staying in current plans will see their premiums decline in 2019. Approximately 46 percent of enrollees in their current plan will have a zero premium in 2019.
- Access to Medicare Advantage and prescription drug plans will remain nearly universal, with about 99 percent of Medicare beneficiaries having access to at least one health plan in their area. All Medicare beneficiaries will have access to at least one stand-alone prescription drug plan.
- Due to new flexibilities available for the first time in 2019, nearly 270 Medicare Advantage plans will be providing an estimated 1.5 million enrollees new types of supplemental benefits:
- Expanded health-related supplemental benefits, such as adult day care services, and in-home and caregiver support services; and
- Reduced cost sharing and additional benefits for enrollees with certain conditions, such diabetes and congestive heart failure due to the agency’s reinterpretation of uniformity requirements.
- Access to important supplemental benefits, such as dental, vision, and hearing continues to grow.
Read the entire fact sheet here.
Sunday, September 30, 2018
Some time ago we wrote about a new " town square" opening in San Diego that would allow visitors with dementia to experience the 1950s again. The idea is now spreading, City Lab published a story a few weeks ago about this trend. Why a ‘Memory Town’ Is Coming to Your Local Strip Mallexplains:
[The builder] has partnered with the home health-care giant Senior Helpers, which employs some 25,000 caregivers around the U.S., to build Town Squares around the country. Version 2.0 is under construction near Baltimore, in a former Rite Aid in White Marsh, Maryland. Seniors Helpers will own and run that facility, expected to open in early 2019. But franchise sales are under way, and Peter Ross, the company’s CEO, is bullish.
We know the number of elders in the U.S. is continuing to increase and with the decliner in mall space, the article notes, can become perfect locations for these expanded types of adult day care facilities. I was intrigued by the information in the article about our memories.
Our strongest, most enduring memories tend to be the those formed in adolescence and early adulthood, from roughly the ages of 10 to 30. Reminiscence therapy targets this age range, and for those Silent Generation members now in their 70s and 80s, that means the 1950s. (A person who is 80 in 2018 would have been 12 in 1950.) So the design of Town Square is intended to evoke the years between 1953 and 1961. It’s decked out with touches like a rotary phones, a 1959 Ford Thunderbird, a classic jukebox, portraits of period Hollywood stars, and vintage books and magazines. As the years go by, these will be replaced by more recent, period-appropriate prompts.
Those visiting the San Diego "town hall" for the most part "have early-to-moderate-stage Alzheimer’s disease, and they’re assessed in advance to determine whether they’re likely to benefit from the experience." As I mentioned earlier, this project is a type of adult day care, but it's more like an adult day care +. "The service that Glenner provides at Town Square—and that its franchisees will offer—is a form of adult day care, but in an unusually elaborate, cheerful, and spacious setting. Part of the sales pitch is that family members of people with dementia can feel good about leaving their loved ones for the day to give themselves a needed respite. (Not surprisingly, the extra reassurance comes at a premium; Town Square costs $95 a day, while the average rate for adult day-care centers is $61.)"
The article discusses another trend, that of the lure of nostalgia, even describing "nostalgiaville" as "places ....[that] remind [folks] of their youth." "The onward march of private or semi-public “nostalgiavilles” (retiree-only communities such as the Villages, Florida, are similarly engineered to evoke vanished small-town life) raises the question: Do people respond to these places ... because [of that reminder], or does their form matter, too? After all, millions of Boomers grew up in postwar sprawl, but Town Square isn’t designed to mimic that."
When you can, spend some time reflecting on the author's closing thoughts:
It’s a sad commentary on our real, full-scale communities that they are so anti-urban by comparison, and so unsafe for the old and frail. Most of the elderly participants strolling these franchised memory lanes will have to be driven to the suburban shopping centers that host them. The recipe for age-friendly cities is not that difficult: walkability, accessibility, plenty of outdoor space, good transit, opportunities for social connection. We shouldn’t have to dodge traffic on an eight-lane road just to get to a simulacrum of an inclusive urban place. The problem is not too much Disneyland thinking—it’s not enough.
My thanks to my colleague Mark Bauer for sending me the link to this article.
Friday, September 28, 2018
The Aging, Law and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop as part of the Law and Society Association Annual Meeting scheduled for Washington D.C. from May 30 through June 2, 2019.
For this workshop, proposals for presentations should be submitted by October 22, 2018.
This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.
The CRN encourages paper proposals on a broad range of issues related to law and aging. For this event, organizers especially encourage proposals on the following topics:
- The concept of dignity as it relates to aging
- Interdisciplinary research on aging
- Old age policy, and historical perspectives on old age policy
- Sexual Intimacy in old age and the challenge of “consent” requirements
- Compulsion in care provision
- Disability perspectives on aging, and aging perspectives on disability
- Feminist perspectives on aging
- Approaches to elder law education
In addition to paper proposals, CRN also welcomes:
- Volunteers to serve as panel discussants and as commentators on works-in-progress.
- Ideas and proposals for themed panels, round-tables, or a session around a new book.
If you would like to present a paper as part of a the CRN’s programming, send a 100-250 word abstract, with your name, full contact information, and a paper title to Professor Nina Kohn at Syracuse Law, who, appropriately enough also now holds the title of "Associate Dean of Online Education!"
September 28, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Statistics, Web/Tech, Webinars | Permalink | Comments (0)
Thursday, September 27, 2018
First the bad -- or at least frustrating -- news. On Thursday, September 27, we received word that Senate Bill 884, the long-awaited legislation providing key reforms of guardianship laws in Pennsylvania, was now "dead" in the water and will not move forward this year. Apparently one legislator raised strong objections to proposed amendments to SB 884, amendments influenced by recent high-profile reports of abuse by a so-called professional guardian who had been appointed by courts in multiple cases in eastern Pennsylvania.
The objections reportedly focused on one portion of the bill that would have required both law guardians (typically family members) and professional guardians to undergo a criminal background check before being appointed to serve. The amendment did not condition appointment on the absence of a criminal record, except where proposed "professional guardians" had been convicted of specific crimes. For other crimes or for lay guardians, the record information was deemed important to permit all interested parties and the court to make informed decisions about who best to appoint.
What is next? Pennsylvanians will look to new leadership in the 2019-20 session in the hope for a new bill that resolves differences and that can make it through both houses. In the meantime, the courts are already moving forward with procedural reforms, adopted in 2018 at the direction of the Pennsylvania Supreme Court.
And that leads us to a more positive note about guardianship reform in Pennsylvania. Pennsylvania Common Pleas Judge Lois Murphy testified this week during a Senate Judiciary Committee meeting about the Pennsylvania Courts' new Guardianship Tracking System (GTS). It is now operational in 19 counties (out of 67 total counties) in Pennsylvania, including coming online in the major urban counties for Philadelphia and Pittsburgh. Judge Murphy reported that GTS is "already paying dividends," and she gave the example of a case in which the reporting system triggered a red flag for an estate worth more than $1 million, much higher than originally predicted, making appointment of different guardian more appropriate.
Judge Murphy predicts that as the tracking system becomes operational statewide, it should generate valuable answers, such as how many persons are subject to guardianships at any point in time, how much in assets are under management, what percentages of the pointed guardians are family members (as opposed to professionals), and what percentages of those served are over or under age 60. The hope is that GTS will also permit coordination of information about appointed guardians in state courts with information in the federal system on those appointed as Social Security representative payees, thus, again, providing more comprehensive information about trustworthiness of such fiduciaries.
You can see Judge Murphy's testimony, and hear her reasons for criminal background checks and appointment of counsel to represent alleged incapacitated persons, along with the views of retiring Senator Greenleaf and Senator Art Haywood, in the recording of the September 24 hearing recording below.
Judge Murphy testifies from approximately the 35 minute mark to the 43 minute mark, and again from 1 hour 33, to one hour 44.
Bottom line for the week -- and perhaps the session? You can certainly grow old just waiting for guardianship reform in Pennsylvania.
September 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0)
Recommended reading! The Rhode Island Providence Tribute published a series of in August and September 2018 that flow from a student journalism project at Brown University in Rhode Island. The team of students conducted an investigation over the course of a year, looking for the outcome of elder abuse allegations in the state. What they found were plenty of arrests but very few successful prosecutions.
Over two semesters, four student reporters pulled hundreds of court files and police reports of people charged with elder abuse to explore the scope of the problem and the way law enforcement and prosecutors handle such cases. In addition, the reporters used computer data purchased from the Rhode Island judiciary to track every elder-abuse case prosecuted in Rhode Island’s District and Superior courts over the last 17 years.
The student project, sponsored by a new journalism nonprofit, The Community Tribune, was overseen by Tracy Breton, a Brown University journalism professor and Pulitzer Prize winner who worked for 40 years as an investigative and courts reporter for The Providence Journal.
As part of the year-long investigation, the students analyzed state court data to evaluate how effective Rhode Island has been at prosecuting individuals charged with elder abuse. This had never been done before — not even the state tracks the outcomes of its elder-abuse cases. The data, based on arrests made statewide by local and state police, was sorted and analyzed by a Brown University graduate who majored in computer science.
The investigation found that 87 percent of those charged with elder-abuse offenses in Rhode Island over the 17-year period did not go to prison for those crimes. Moreover, fewer than half of those charged were convicted of elder abuse. This left victims in danger and allowed their abusers to strike again and again.
The above excerpt is from the first article documenting the students' amazing investigation. I definitely recommend reading the following articles. Caution: there is a paywall that appears after you open some number of articles on the Providence Tribune website, so if you aren't in the position of being able to pay for all the articles, you may want to prioritize the order in which you "open" the individual parts.
Part 6 is somewhat different, as it tracks the "successful" prosecution of a court-appointed guardian who pled "no contest" in 2015 to charges of embezzling money from an 80-year old elderly client. The embezzlement scheme allegedly involved false claims for services and double-billing. According to other news sources, the guardian, an attorney who was eventually disbarred in connection with her plea, was required to pay more than $130k in restitution and serve 30 months of home confinement in lieu of a "suspended" sentence of seven years in prison.
September 27, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 26, 2018
Latest News on Pennsylvania's Adult Guardianship Reform Legislation - SB 884 is still lingering in the Senate
I was hoping to be able to report by today, the last of a three-day working session for the Pennsylvania Senate, that Senate Bill 884 on adult guardianship law reforms had passed the state's Senate, allowing the bill to move on to the House of Representatives. But no vote yet on the floor of the Senate. The next opportunity for movement is Monday, October 1.
For more on the history of the bill presenting several key items of reform for Pennsylvania's Adult Guardianship Laws and process, see our posts from last week, here, here, and here, or a memo I prepared earlier last week, here.
Will the Pennsylvania Legislature take action before the November elections? Stay tuned!
September 26, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 24, 2018
From The New York Times, a well-told tale from siblings who recently "joined the ranks of the 15 million or so unpaid and untrained family caregivers for older adults in this country," calling them the nation's invisible work force. As one son admits:
The work takes its toll. These sons, daughters, husbands and wives are at increased risk of developing depression, as well as physical and financial difficulties, including loss of job productivity. Being sick and elderly in this country can be terrifying. Having a sick and elderly loved one is often a full-time job.
As the workload increased, we hired help, as much for ourselves as for our parents. But after some items were stolen, we realized we had to be more careful about whom we allowed into our parents’ home. Older adults in this country lose almost $3 billion a year to theft and financial fraud. Nearly every week my father instructed us to donate money to someone who had sent him a generic email appeal. It fell on us to keep our parents from being exploited.
With millions of elderly adults requiring assistance with daily living, physicians should make it routine practice to ask family members whether they can provide the requisite care. Many of these potential caregivers, ill or stressed themselves, simply cannot.
For the full article, read When Family Members Care for Aging Parents.
My thanks to colleague Laurel Terry at Dickinson Law for sending the link to this article!
Sunday, September 23, 2018
My colleague and dear friend, Professor Mark Bauer, sent me this story from CNN. Kicked out of assisted living: What you can do focuses on the situation where "[a]cross the country, assisted living facilities are evicting residents who have grown older and frail, essentially saying that 'we can't take care of you any longer.'" This happens more often than you think. The article cites 2016 statistics thath show "[e]victions top the list of grievances about assisted living received by long-term care ombudsmen across the U.S. In 2016, the most recent year for which data are available, 2,867 complaints of this kind were recorded -- a number that experts believe is almost surely an undercount."
The article notes often there is little recourse, especially with regulations at state levels varying. The reality?
While state regulations vary, evictions are usually allowed when a resident fails to pay facility charges, doesn't follow a facility's rules or becomes a danger to self or others; when a facility converts to another use or closes; and when management decides a resident's needs exceed its ability to provide care -- a catchall category that allows for considerable discretion.
Unlike nursing homes, assisted living facilities generally don't have to document their efforts to provide care or demonstrate why they can't provide an adequate level of assistance. In most states, there isn't a clear path to appeal facilities' decisions or a requirement that a safe discharge to another setting be arranged -- rights that nursing home residents have under federal legislation.
Then there are situations where the ALF takes the position they can't care for the resident any longer, or transfers the person to the hospital and refuses to allow them to return on discharge. As is often the case, the article notes the ALFs offer justifications for the evictions.
The article suggests these tips for prospective residents and families: "ask careful questions about what the facility will and won't do... What will happen if Mom falls or her dementia continues to get worse? What if her incontinence worsens or she needs someone to help her take medication?... Review the facility's admissions agreement carefully, ideally with the help of an elder law attorney or experienced geriatric care manager. Carefully check the section on involuntary transfers and ask about staffing levels. Have facility managers put any promises they've made ... in writing." Get a doctor's evaluation when the ALF says it can't provide the care, contact the long-term care ombudsman, file suit, seek relief under the ADA and look at adjusting expectations.
The article is accompanied by a video. Check it out. Thanks for Professor Bauer!
Friday, September 21, 2018
This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.
Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here. A key amendment is now under consideration, in the form of AO9253. These amendments:
- Require counsel to be appointed for all allegedly incapacitated persons;
- Require all guardians to undergo a criminal background check;
- Require professional guardians to be certified;
- Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).
Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates.
A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf. His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:
The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.
As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).
The devil is in the details for any legislative reforms. It is often an "all hands on deck" effort to secure passage, especially in an election year.
Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?
September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)