Monday, August 25, 2014

New York Times Says Medicare "Star" Ratings Allow NHs to Game System

In a feature article on Medicare's "star ratings," the New York Times reports that some nursing homes are able to "game the system" through self-reports of data that fail to include complaints filed with state agencies.  The article uses examples to show that even five star ratings, the highest available,  can be obtained despite pending state investigations into serious allegations of mishandled care.  The ratings by Medicare were intended to provide an objective measure for consumers and in recent years a growing proportion of nursing homes have obtained higher ratings. 

"But some nursing homes are not truly improving. Instead, they have learned how to game the rating system, according to ]New York Times] interviews with current and former nursing home employees, lawyers and patient advocacy groups. Nationally, the proportion of homes with above-average ratings has risen steadily. In 2009, when the program began, 37 percent of them received four- or five-star ratings. By 2013, nearly half did.

 

The Times analysis shows that even nursing homes with a history of poor care rate highly in the areas that rely on self-reported data. Of more than 50 nursing homes on a federal watch list for quality, nearly two-thirds hold four- or five-star ratings for their staff levels and quality statistics. The same homes do not fare as well on the sole criterion that is based on an independent review. More than 95 percent of the homes on the watch list received one or two stars for the health inspection, which is conducted by state workers."

For more, see "Medicare Star Ratings Allow Nursing Homes to Game the System" by Kate Thomas.

August 25, 2014 in Health Care/Long Term Care, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Pennsylvania Commission Urges Reforms for Long-term Care Services & Supports

The Pennsyvania Joint State Government Commission issued a final report of its Advisory Committee on Long Term Care Services and Support for Older Pennsylvanians on August 21, 2014, following a year-long assessment of existing concerns of independent and care-dependent elders in Pennsylvania.

In a one-page summary of the 200 page report, the Commision makes the following Recommendations:

"Opportunities exist to improve system structure and organization, reduce barriers, and break down silos that characterize service delivery and payment. Better care transitions and improved coordination of service providers are also crucial, along with increased support for family caregivers. Focused information and awareness for consumers and families helps ensure they know where to turn when a crisis hits, which is often their first exposure to long term care. Expanding access to services and supports, through a tiered system that shares costs, will help improve quality and increase accountability. Enhancements to local resources, including Area Agency on Aging networks, will focus services and advance more equal community, facility, and home care options. These reforms will help ensure access to long term care for all Pennsylvania seniors, and prevent those who need assistance but don’t qualify for supports, from falling between the cracks."

Now comes the hard work . . . getting to an implementation stage.

August 24, 2014 in Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2014

Canadian Medical Ass'n President says warehousing seniors costs billions

 
Canada's hospitals are "overflowing at the seams" with patients who don't need to be there - frail and aging seniors, many of them with dementia, who have nowhere else to go, says the incoming leader of the Canadian Medical Association. The "warehousing of seniors" is costing the system $2.3 billion a year and highlights urgent need for a national rethink of seniors' care, Dr. Chris Simpson said in his inaugural speech Wednesday as CMA president.

Simpson, who also chairs the national Wait Times Alliance, said Canadians are facing long waits for virtually every non-urgent test, surgery or procedure "because the beds needed are filled with patients who don't need to be in hospitals."

Seniors awaiting placement in other facilities are occupying about 15 per cent of hospital beds. But "instead of focusing on getting them back to their independence we put them in beds, because that's what we do in hospitals. We put people to bed instead of putting them in a care environment that lifts them up and restores them and helps them live a dignified life."

Read more here.

August 22, 2014 in Health Care/Long Term Care, International | Permalink | TrackBack (0)

Thursday, August 21, 2014

Watch Oral Argument Before Ohio Supreme Court on "Asset Transfer" Case

Wow!  Medicaid transfer rules argued in prime time!  (Well, almost...)

On August 20, the Ohio Supreme Court heard oral argument on Estate of Atkinson v. Ohio Dept. of Job & Family Services, Case No. 2013-1773.  Video of the presentations (including the very interesting questions from the bench) can now be viewed here on the Ohio Channel. 

This strikes me as a great opportunity for Elder Law course students to read briefs and observe lawyers in oral argument tackle technical, challenging legal issues (listen to the Court ask one attorney to slow down and explain his use of pronouns).  Can you predict the outcome?  Note: The Supreme Court's arguments on Ohio Channel appear as high quality productions, well edited, with subtitles indicating the names of the speakers and the identity of the issues on appeal, and the website is searchable for other appellate cases for faculty members looking for examples to use in other classes.

As framed in the appeal, the issue is whether the community husband's actions triggered a period of ineligibility for Medicaid benefits for his wife in the nursing home.  The record showed the husband transfered the couple's  home "out" of the couple's long-standing revocable trust to the name of the institutionalized spouse, and then in turn, the same day, to the community spouse.  As described in one news account:

"The county department of job and family services found that the transfer of the home, valued at $53,750, was improper because it violated federal and state Medicaid rules. While Mrs. Atkinson’s Medicaid benefits were approved, the agency temporarily excluded nursing-home care from her coverage because of the transfer." 

The state has been successful with its arguments before state agencies up to this point.  The Ohio  Supreme Court, however, asked the attorneys about the applicability and relevance of the 6th Circuit's 2013 decision in Hughes v. McCarthy regarding permitted use of spousal annuities in Medicaid planning in Ohio.  During the oral argument, one Justice also asks whether the state should be bound by the position taken by the federal agency, Health and Human Services (apparently in an amicus brief), in support of the family's argument. 

There are also opportunities here to think about whether -- and how -- this particular transfer issue might have been avoided with different planning. 

August 21, 2014 in Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

Discharge from Hospice

We have blogged previously on hospice, and a new article adds to the body of literature on the subject.  The Journal of Palliative Medicine published an article by Dr. Joan Teno, Dr. Michael Plotzke, Dr. Pedro Gozalo, and Dr. Vincent Mor, A National Study of Live Discharges from Hospice. The study recognizes that there are various reasons that a person may leave hospice care, such as "patients decide to resume curative care, their condition improves, or hospices may inappropriately use live discharge to avoid costly hospitalizations." The abstract offers the following conclusion-about 20% of "hospice patients are discharged alive with variation by geographic regions and hospice programs. Not-for-profit hospices and older hospices have lower rates of live discharge."  Why is it important to study this? As the introduction to article points out, there are instances when a provider may improperly discharge a patient and the timing can be telling: improper admission to hospice at the beginning or an effort to avoid costs.  Building on existing research, this study finds similar results in some areas, but makes some important conclusions that deserve additional study

Provide and state variation raises concern that live discharges are not driven by patient preference but by provider and market behavior. Hospice programs that exceed their aggregate reimbursement caps (a marker for hospices with an excessive average hospice length of stay) had nearly double the rate of live discharges compared to hospice programs that did not exceed their aggregate cap.

The authors suggest there are certain red flags that should alert regulators that more careful scrutiny is needed for a specific hospice.

A hospice program with a high rate of live discharges deserves regulatory scrutiny especially when they have a pattern of hospitalization and hospice readmission. With increased hospice competition or potential future changes in hospice payment policies, hospices may change their enrollment and pattern of live discharges to maximize their profitability. Potentially, live hospice discharges represent a vulnerability of the Medicare Hospice Benefit. Hospices with high rate of these patterns of live discharges should trigger further regulatory review that examine whether their hospice enrollees were eligible, adequately informed about the Medicare hospice benefit before electing hospice, and whether the hospice program did a good enough job of advance care planning to avoid hospitalizations.

 

August 19, 2014 in Consumer Information, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Increase in seniors with HIV

 The Centers for Disease Control says more than 1 million people in the U.S. are living with HIV, and almost 1 in 6 don't know they are infected. This could affect Suncoast seniors who may be unaware of the dangers.  There are certain things we are hesitant to discuss with children, and frequently those same topics are avoided with seniors. But whether we address it or not, older people are not only sexually active; according to the American Academy of HIV Medicine, by 2015, half the U.S. HIV population will be age fifty or older.  “But they think they're not at risk. In their day, condoms were only for birth control. And so today, they don't have to worry about birth control and they don't know about HIV and all the other STD's that they could have to worry about.”  Seniors with HIV that don't realize it are in a very dangerous position. “HIV accelerates and predisposes you to a number of diseases which causes death.

Read more:  WWSB/ABC News

August 19, 2014 in Health Care/Long Term Care, Other | Permalink | TrackBack (0)

Sunday, August 17, 2014

Medicare Fraud

The Washington Post ran a fascinating article on a particular Medicare scam.  A Medicare Scam That Just Kept Rolling was published August 16, 2014 and focuses on power wheelchairs. The article offers a detailed look at how this particular scam worked.

The wheelchair scam was designed to exploit blind spots in Medicare, which often pays insurance claims without checking them first. Criminals disguised themselves as medical-supply companies. They ginned up bogus bills, saying they’d provided expensive wheelchairs to Medicare patients — who, in reality, didn’t need wheelchairs at all. Then the scammers asked Medicare to pay them back, so they could pocket the huge markup that the government paid on each chair.

This eye-opening article points out that the depth and breadth of the scam remains largely unknown, but is on its way out.

But, while it lasted, the scam illuminated a critical failure point in the federal bureaucracy: Medicare’s weak defenses against fraud. The government knew how the wheelchair scheme worked in 1998. But it wasn’t until 15 years later that officials finally did enough to significantly curb the practice.

The article is accompanied by a video that shows in "four easy steps" how to perpetrate a Medicare scam as well as a sidebar with slides showing how the power wheelchair scam works.  Variations of the scam are more than 40 years old and have morphed with the times.

If you aren't shaking your head in wonder now, consider why these scams can happen:

[F]or Medicare officials at headquarters, seeing the problem and stopping it were two different things. 

That’s because Medicare is an enormous system, doing one of the most difficult jobs in the federal government. It receives about 4.9 million claims per day, each of them reflecting the nuances of a particular patient’s condition and particular doctor’s treatment decisions.

By law, Medicare must pay most of those claims within 30 days. In that short window, it is supposed to filter out the frauds, finding bills where the diagnosis or the prescription seem bogus.

The way the system copes is with a procedure called “pay and chase.” Only a small fraction of claims  3 percent or less — are reviewed by a live person before they are paid. The rest are reviewed only after the money is spent. If at all.

The whole thing is set up as a kind of honor system, built at the heart of a system so rich that it made it easy for people to be dishonorable.

The article talks about comparisons--the amount of money spent on power wheelchairs as compared to the total amount of dollars spent in the Medicare universe and although the amount spent on wheelchairs is a lot, it's a small amount in that universe.  The article mentions the steps the government has taken to end the motorized wheelchair scam such as competitive bidding and rent-to-own. So if the wheelchair scam is on the decline, what's the next one? According to the article, orthotics and prosthetics. Stay tuned...

August 17, 2014 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, August 14, 2014

Health Affairs Call for Papers: Caring for Older Adults

Health Affairs Journal: Call for Papers on Care for Older Adults


The journal Health Affairs is seeking articles on older adults, and specifically regarding the care and management of multiple chronic conditions among this population. We are interested in work that spans the full range of care settings, including primary care and specialty practices, hospitals, nursing homes and other long-term care settings. We are grateful to The John A. Hartford Foundation for providing support for our ongoing coverage of these topics. There is no deadline for submissions; papers on these topics will be considered on an ongoing basis and considered for publication through 2015. For more information, contact Health Affairs executive editor, Don Metz: dmetz@projecthope.org.

August 14, 2014 in Dementia/Alzheimer’s, Health Care/Long Term Care, Other | Permalink | TrackBack (0)

Tuesday, August 12, 2014

Genworth Long-Term Care Insurer: More Changes on the Horizon?

It is no secret that the long-term care insurance industry has struggled to offer products that are both attractive and affordable for consumers and financially worthwhile for the insurance companies.  MetLife and Prudential no longer offer new policies, for example.

Genworth, the largest provider of long-term care insurance, announced on July 29, 2014 that its second quarter showed significant changes and that it is conducting a comprehensive review of its long term care insurance claim reserves. Apparently the company's investors have asked for additional information, following the last in-depth review of the claims reserve, which was conducted in 2012.  Genworth's news release explained:

"The primary areas of focus in the current review are: (i) an analysis of potential causes of the meaningful increases in adverse claims experience in the second quarter of 2014 and (ii) an assessment of the assumptions and methodology underlying the associated reserves, including morbidity, mortality, interest rates and claim terminations. The company intends to complete this review before the release of financial results for the third quarter of 2014. The company continues to believe that the existing assumptions and methodology provide the most reliable best estimate. However, given the review underway that will consider both long-term and recent experience, the company will likely change some of its assumptions, which could increase our long term care insurance claim reserves, and any increase may or may not be material."

As reported by Reuters, ratings of Genworth by Fitch already assume some level of LTC earnings and reserve volatility, but depending on the size of any charges taken by Genworth in the third quarter, "Fitch may review the ratings of GNW [Genworth] and the review could result in a revision in the Outlook to Negative or a rating downgrade."

August 12, 2014 in Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

Are There Serious Problems With Hospice Programs? Washington Post 3-Part Series

The Washington Post recently completed a disturbing three-part series on hospice.  To analyze the quality of services rendered to terminal patients, the reporters reviewed "Medicare billing records for more than 2,500 outfits, obtained an internal Medicare tally of nursing care in patients near death and reviewed complaint records at hundreds of hospices."  The Post tracks data pointing to staff shortages, lack of coordination in care, failure to provide sustained assistance during critical periods, and the potential for Medicare to incentivize such gaps through perverse funding priorities.

Part 1: Terminal Neglect: How Some Hospices Treat Terminal Patients

Part 2: Is that Hospice Safe? Infrequent Inspections Mean it May be Impossible to Know

Part 3: Rising Rates of Hosptice Discharge in U.S. Raise Questions about Quality of Care

August 11, 2014 in Advance Directives/End-of-Life, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, August 10, 2014

China's Rural Elderly Don't Get Enough Medical Care

Via Bloomberg:   

By 2050, a quarter of China’s population is expected to be age 65 or older. Although the government has recently loosened its restrictive population policy to allow most couples to have two children, so far it doesn’t look likely that any forthcoming baby boom will save China from its rapidly aging population.  China’s current elderly, especially those living in rural areas, frequently endure chronic medical conditions without treatment, according to a new study in the journal International Health. Dai Baozhen of Jiangsu University’s Department of Health Policy & Management analyzed the results of China’s semi-regular “health and nutrition survey” for 2009, looking in particular at the responses from rural households in nine provinces.

Among his findings: China’s elderly are likely to be less educated than younger cohorts and often poorer. Nearly 70 percent of the rural elderly in the survey had an annual income of less than 5,000 renminbi ($810). Many also said their children had left home to work in cities, and while they might send money back, they couldn’t provide steady emotional support or help in obtaining and monitoring health care. Fifty-eight percent of the elderly respondents were illiterate, another barrier in obtaining health services.

It was not uncommon for China’s rural elderly to suffer chronic conditions, according to the study, including hypertension (18 percent), asthma (6 percent), and diabetes (3 percent). And those figures represent diagnosed conditions—the worrying possibility exists that many elderly suffer in the absence of any diagnosis. Fully a quarter of elderly were diagnosed with hypertension, and a third of those diagnosed with diabetes received no treatment.

Isolation and depression are also significant risks for rural elderly. China’s overall suicide rate has dropped sharply over the past two decades, especially among rural women under age 35. But among China’s elderly, it remains distressingly high. According to a recent study by researchers at the University of Hong Kong, cited by the Economist, the suicide rate for men in the Chinese countryside aged 70 to 74 is 41.7 per 100,000 (more than four times higher than the national average of 9.8 per 100,000).

Source/read more:  Bloomberg

Read the full study.

Compare US.

August 10, 2014 in Health Care/Long Term Care, Other | Permalink | TrackBack (0)

Sunday, August 3, 2014

Financial Gerontology

I was reading an article about Merrill Lynch hiring a financial gerontologist, Five Questions for Financial Gerontologist Cyndi Hutchins. Ms. Hutchins "works with other Merrill Lynch financial advisers to manage their clients' transitions into retirement. She specializes in settling the fears many aging people have about life without a steady paycheck." In the interview, Ms. Hutchins explains why she got a degree in gerontology and explains what concerns clients vis a vis retirement: paying for out of pocket health care costs, including long term care, as well as those for family members.  Comparing the Boomers and Millenials, Hutchins references the proverbial 3-legged stool and says for boomers-it's 2 legs--with no pension leg, but for Millenials, it's just one leg (savings). Her biggest challenge--client fears.  "Helping them keep a healthy outlook and keeping it real is probably the biggest challenge. You don't want to come out there sounding like a Debbie Downer, but you want your clients to understand the issues that they're facing and face those issues head on and feel like they have clarity. There's so many things to consider."

I was intrigued by this concept of financial gerontology so I did a google search and found out Ms. Hutchins is not the only one out there.  The American Institute for Financial Gerontology offers not only CEs but also a registered financial gerontologist program ("RFG®"). The faculty include several individuals well-known to elder law attorneys.  Dr. Sandra Timmermann wrote an article that was published in 2005 in the Journal of Financial Services Professionals, Looking into the Crystal Ball and Seeing Gray: Predictions For Financial Services. At the time of authoring the article, Dr. Timmermann "was the  founder and Executive Director of the MetLife Mature Market Institute" (dissolved 06/2013) and is currently a consultant for businesses on aging.

August 3, 2014 in Health Care/Long Term Care, Retirement | Permalink | Comments (0) | TrackBack (0)

Thursday, July 31, 2014

Chicago Declaration on the Rights of Older Persons to Be Presented August 1

Chicago Declaration on Rights of Older Persons Side EventAt the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago on July 10 and 11, many weeks of hard work culminated in adoption of a "Chicago Declaration on the Rights of Older Person."  The 11th draft -- of what is to be a working document for the future -- will be presented at the Fifth Working Session of the United Nations Open-Ended Working Group on Ageing to be held in New York City this week. 

In addition, the Chicago Declaration was submitted by United States Representative Janice Schakowsky (Illinois) to the Congressional Record on July 25. 

Congratulations to all who worked on this, with the leadership of many, including Associate Dean Ralph Rubner and Amy Taylor, Head Research Coordinator at John Marshall Law School.  More work for everyone is ahead on this exciting task of seeking wider recognition of the human rights of older persons. 

Speakers at the "Side Event" for the Chicago Declaration, to be held on August 1 at the U.N., include William Pope, Commissioner of the American Bar Association Commission on Law and Aging, and Ebbe Johansen, Vice President, AGE Platform Europe from Brussels.    

July 31, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 30, 2014

Omnicare Inc. to Pay $124.24 Million in Settlement of Whistleblower Case

From the Department of Justice, news of the False Claims Act settlement reached with Omnicare Inc., "the nation's largest provider of pharmaceuticals and pharmacy services to nursing homes."  The company has agreed to pay $124.24 million "in return for their continued selection" as the supplier of drugs to elderly Medicare and Medicaid beneficiaries.  The claims related to improper discounts allegedly given by Omnicare as incentives for doing business with the company.

According to the DOJ press release, the settlement resolves two lawsuits filed by whistleblowers under the qui tam provisions of the False Claims Act. "The first whistleblower, Donald Gale, a former Omnicare employee, will receive $ 17.24 million." 

DOJ states that since January 2009, it has "recovered a total of more than $19.5 billion through False Claims Act cases," including more than $13.9 billion in cases alleging fraud associated with health care programs.

July 30, 2014 in Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Using Filial Support Laws as "Leverage"

What do you think about promotion of filial support laws -- laws potentially obligating adult children to care for and maintain or financially assist an indigent parent -- as grounds to encourage states to promote the purchase of "long-term care" insurance?  In essence, that is what three authors associated with the "American College of Financial Services" advocate in a recent article for volume 20 of  Widener Law Review.  Here's the SSRN abstract from "Leveraging Filial Support Laws Under State Partnership Programs for Long-Term Care Insurance."

"As thousands of the United States’ baby-boomers retire each day, people live longer, families disperse, and the population ages. Financing long-term care needs has become an increasingly important focal point in both civilian and government budget discussions. In order to reduce reliance on government provided long-term care funding programs such as Medicaid, states can leverage the often unenforced filial responsibility laws and State Long-Term Care Partnership Programs. Through the enforcement of existing filial responsibility laws, states can provide the proverbial “stick” to incentivize people to purchase long-term care insurance by increasing their personal liability for their family members’ long-term care expenditures. Furthermore, by offering liability protections from filial responsibility laws under the state’s long-term care insurance partnership program, states will be able to offer a “carrot” to encourage participation in the long-term care insurance market. Ultimately, by leveraging these two existing legal structures, states can incentivize the purchase of long-term care insurance and reduce reliance on government provided long-term care financing programs."
The authors advocate linkage between stronger enforcement of filial support laws and development of state long-term care insurance partnership programs. In the conclusion they write: "[t]he enforcement of existing filial support laws represents a unique opportunity for governments looking to enact long-term care funding changes.  Enforcement of filial laws represents the 'stick' to be applied to those without long-term care insurance."
 
The authors of this interesting article -- worthy of discussion -- self-identify on SSRN and in the footnotes of their article as faculty members at The American College.   As I was not familiar with that institution, I wanted to know more.  My additional research indicates that a more complete name is The American College of Financial Services (linked above), a nonprofit that offers "financial education for securities, banking and insurance professionals," including programs for trademarked designations such as "chartered life underwriter" and  "certified financial planner." 
 
For my part, having studied, written about, and (occasionally) litigated cases involving filial support laws for close to 20 years, I welcome this additional commentary.  I am concerned, however, that insurance companies may be tempted  to see filial support laws primarily as "marketing tools" for the sale of long-term care insurance, without fully appreciating the impact that enhanced enforcement of such laws could have on family dynamics, especially families of modest means.  

July 30, 2014 in Federal Cases, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Indiana CCRC Files Chapter 11 Bankruptcy to Restructure $14 Million in Debt

From Senior Housing News, comes the word of River Terrace Estates, a nonprofit Continuing Care Retirement Community (CCRC)  in Bluffton, Indiana, that filed for protection in bankruptcy court on July 22.  Unlike some Chapter 11 reorganizations for CCRCs, River Terrace is not a "new" construction, having opened in 2004.  However, as with newer operations that came on line just as the 2008 financial crisis hit, River Terrace reports being impacted by the recession, reportedly a hard hit for housing in Northern Indiana.  As described in Senior Housing News, one potentially unique aspect of the River Terrace financing issues is the source of the loans it carried:

"Contrary to some CCRCs that rely heavily on institutional investments, River Terrace Estates’ financing encompasses roughly 1,400 individuals who own RTE bonds. As a result, the CCRC determined that Ch. 11 was the only feasible method to restructure the bonds. In connection with the filing, the CCRC has already filed a plan of reorganization in order to expedite the process, River Terrace Estates stated in a news release.

 

'Because we have some 1,400 bondholders, we decided the best way to give them a voice in this process is to ask them to vote on a two-part plan so we know their intentions,' Stewart said. RTE bondholders will be asked to vote on whether they want to keep their bonds for the long-term based on the community’s recent progress, or market the CCRC to validate its value."

According to news reports,  either way, "bondholders will take a serious haircut, perhaps recovering only 53% in a bond exchange or $0.46 on the dollar in the sale of the facility, a hard hit on predominantly non-institutional investors," according to George Mesires, a lawyer with the finance and restructuring team for a Chicago law firm, quoted in Senior Housing News and on the firm's website.  

Another potentially unique feature will be River Terrace Estate's plan for going forward with a different payment model for new residents.  Rather than paying an entry fee described as $55k to $100k, new residents can pay a "nonrefundable communtiy fee of about $30,000, accordiong to figures provided" by a spokesperson quoted in Senior Housing News.

This summer has brought news of other financial struggles for CCRCs, including the June Chapter 11 filing by Texas-based senior living company Sears Methodist Retirement Systems, and the Chapter 11 filing by a New York life care community, The Amsterdam on July 23. The ability of CCRCs to emerge successfully from similar reorganizations in the past has often depended on new operating partners and restructuring of loans, but also on the ability of the companies to reassure future residents of appropriate protection and use of "large" upfront fees.  

July 29, 2014 in Federal Cases, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Highlights from the 17th Annual Elder Law Institute in Pennsylvania

Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple:  "Drop everything and go to Pennsylvania's 2014 Elder Law Institute."  Indeed, this year saw some 400 individuals attend. 

Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners.  After the first two-hour joint session, over the course of two days there are four sessions offered every hour.  One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney.  Indeed, I usually sponsor two Penn State law students to attend.  As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.

One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine.  Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review.  Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future.  They frequently pose important policy perspectives, based on recent events. 

Among the highlights from the year in review session:

  • Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods.  Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
  • A GAO Report on Medicaid Managed Care programs, also released in June, concluding that  additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
  • The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
  • Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship. 

In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.

The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute

July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, July 27, 2014

New York CCRC Files for Reorganization in Bankruptcy Court

The Amsterdam, also known as Amsterdam House at Harborside, has been marketed as the "first and only" life care community in Nassau County.  It now also appears to be the first CCRC in that county -- and perhaps in the state of New York -- to seek the protection of the bankruptcy court.  The company filed under Chapter 11 for "Reorganization" on July 23, 2014.

As reported in Newsday on July 23:

"An upscale retirement community in Port Washington has filed for bankruptcy protection after failing to get all of its bondholders to support a debt restructuring. The Amsterdam at Harborside sought protection in federal court from its creditors under Chapter 11 of the U.S. Bankruptcy Code. Executives at the not-for-profit said Wednesday that it would not close and there are no plans to fire any of the 173 employees. In a court filing in Central Islip on Tuesday, the continuing-care complex said its liabilities and assets were both in the range of more than $100 million to $500 million."

According to news reports, The Amsterdam was opened in 2010, near the peak of the recession, a tough time for many CCRCs.  It is a "refundable entrance" fee model, with entrance fees ranging from $500,000 to $1.6 million, with a reported 85% occupancy status. Newsday also reports that "under the proposed restructuring plan, [company spokespersons said] the retirement community would honor the contracts of existing residents, continue to refund residents' money when they no longer live there, and maintain the current fee structure."

Update:  Senior Housing News describes the filing as a "pre-negotiated chapter 11 bankruptcy petition to restructure an estimated $220 million in debt."

July 27, 2014 in Current Affairs, Federal Cases, Health Care/Long Term Care, Housing | Permalink | Comments (1) | TrackBack (0)

Thursday, July 24, 2014

The Five Halves of Elder Law

The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one).  In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized  that perhaps it really has five halves.  See what you think.

  • In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death.  Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults.  They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.

 

  • Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms.  They have critical skills and knowledge of  health-related benefits under federal and state programs.  They also have sophisticaed  information about the availability of income-related benefits under Social Security.  They often serve the most needy of elders.  Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play. 

 

  • At the state and federal levels, core decisions are made about how to interpret laws affecting older adults.  Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse. 

 

  • A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of  contracts, insurance and public benefit programs that pay for such services.

 

  • Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families.  My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.

Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together. 

My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging,  I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school.  Organizing these "halves" may also help in organizing course materials.

I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law.  What am I forgetting?   

July 24, 2014 in Cognitive Impairment, Consumer Information, Crimes, Health Care/Long Term Care, Housing, Medicaid, Medicare, Other, Social Security | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 22, 2014

The Movement for Human Rights for Older Persons in Paraguay

Mexico and countries in the Caribbean, Central and South America have been working very hard on the question of whether laws are needed to recognize and promote the human rights of older persons.  This commitment was demonstrated during the 2014 International Elder Law and Policy Conference in Chicago, by Rosa Bella Caceres Mongelos from Paraguay, as one of the speakers on the panel focused on "Dignity, Equality and Anti-Ageism Rights of Older Persons." Rosa Bella Caceres Mongelos of Paraguay

Professor Caceres Mongelos is the current president of the Central Association of Retired Public Servants and Teachers in Paraguay, and has experience as a master teacher, educational administrator, and vocational counselor.  She has also taught classes at the university level on leadership.  When I asked whether her organization is comparable to AARP in the U.S., which was started by a retired teacher, she laughed and said "maybe some day."  I think she would not mind me saying that she's tiny but powerful  -- and certainly she is an articulate spokesperson for the issues her country, with a total popularion of 6.8 million, is facing.

Professor Caceras Mongelos has served as a spokesperson for her civil society organization during regional meetings for Latin America and the Caribbean in 2012 and 2013 that led to endorsment of a formal international convention on the rights of older persons. 

The participation of Paraguay in international discussions of aging is forward-thinking, as it is actually a comparatively young country in terms of its overall population.  Persons aged 60 and over comprise approximately 8% of the population.  Recent news reports  indicate that more than 66% of its population is less than 30 years old.  At the same time, with their citizens already experiencing relatively long-life spans, especially on a comparative basis (average life span is now 75 according to some reports), the country will begin to see the impact of aging as a nation starting in 2038. 

The organization headed by Caceres Mongelos has adopted advocacy goals for its members, including health related goals, such as securing free health care (including mobile clinics) for retirees for critical matters such as vision and dental care, and for treatment of cancer and chronic diabetes, all issues recognized as important for the self-esteem of older persons.   Her Central Association has a project called "Hogares de Jubliados" or "Homes for the Elderly," with a goal of providing space for as many as 200 persons deemed vulnerable and unprotected.  Her organization seeks to "monitor and insure safekeeping of social security funds under control of the treasury" during the current fiscal crisis.  A better system of public transportation is another key goal.

She described her Central Association's recent Yellow Ribbon Campaign to re-enforce recognition of the rights of civil services and retirees to be free from pay discrimination under the Constitution of Paraguay.  She described the yellow ribbons as symbols for the "struggle to claim solidarity, love, better living and the light of hope for a bearable and dignified old age." Despite the small proportion of Paraguayans currently deemed older -- in their "third age" -- she said "fragility" often characterizes their life conditions, with more than a quarter of the population of older adults illiterate and with only 19% currently receiving any form of income from pension or retirement benefits. In addition, her association stresses that real attention must be paid to the needs of older persons in indigenous communities and Afro-descendants. 

In closing, Professor Caceres Mongelos called for an end to procrastination on international recognition of the rights of older persons.  She said,  "Declaring and implementing the regulations calling for dignity, equality and non-discrimination ... for older persons needs to be achieved as quickly as possible [toward] the goal of improving quality of life and respecting the human rights of older persons." 

July 22, 2014 in Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)