Friday, August 17, 2018
I'm teaching a "short course" on long-term care insurance for my law students this semester. Therefore I'm collecting as much current information on policies and costs as possible to share with my students. Along that line, WTOP-News in the D.C. area recently posted a two part discussion on "Weighing the Costs and Need for Long Term Care Insurance."
From the first part of the series:
Based on a 2016 Department of Health and Human Services study, about half of Americans turning 65 today will require long-term care services during their lifetimes (47 percent for men and 58 percent for women) with most needing assistance for an average of two years. About 12 percent will need between two and five years of long-term care, and nearly one in seven adults will require five or more years. . . .
Now let’s turn to the potential costs of long-term care services which varies by state and type of care. Genworth, a provider of long-term care insurance, released its 2017 Cost of Care Survey stating the national average annual cost of a private room in a nursing home is $97,452 which is an increase of 5.5 percent from one year ago and a five-year annual inflation increase of 3.5 percent. Interestingly, the biggest increase in long-term care costs was for a home health aide, which increased 6 percent from 2016 to 2017, to $49,162 per year for 44 hours per week.
Summary of Genworth’s median annual 2017 long-term care costs are below:
Adult Day Care (5 days/week) $18,200
Assisted Living (one-bedroom) $45,000
Homemaker Services (44 hours/week) $47,934
In-Home Health Aide (44 hours/week) $49,192
Nursing Home (semi-private room)$85,775
Nursing Home (private room) $97,455
Source: Genworth 2017 Cost of Care Study
The article also has a good summary of key features of LTCI, including inflation riders, elimination periods, maximum daily benefits vs. maximum benefit period, lifetime maximums, guarantees on renewability, nonforfeiture options and shared care.
The writer, Nina Mitchell, who is a advisor for The Colony Group, says that she plans to focus on "alternative long-term care solutions, such as hybrid policies that combine life insurance with long-term care insurance" in Part 2.
Thursday, August 16, 2018
Senator Ron Wyden has sent a letter to the CMS administrator about CMS' staffing ratings of SNFs. His letter points out discrepancies between self-reported data and the newly required payroll data that leads to his concerns that the correctness of the information shared with residents and families
Senator Wyden has asked five questions, seeking replies by August 24, 2018.
What are the requirements and safeguards CMS has in place to ensure SNFs provide accurate information as part of the 5-Star Quality Rating System. How are these requirements enforced?
Please provide an analysis of the difference in staffing levels of SNFs between the self-reported methodology and the payroll data methodology?
What does CMS plan to do in the instances where payroll data illustrates the self-reported staffing data was inaccurate?
Would CMS consider updating the current staffing quality measures to, in addition to measuring average staffing levels, take into account inappropriate fluctuations in staffing that may lead to patients receiving inadequate care?
Would CMS consider measuring patient and/or family satisfaction as part of the 5-Star Quality Rating System?
Tuesday, August 14, 2018
Register now for a free webinar from the National Consumer Voice for Quality Long Term Care. The webinar is scheduled for September 5, 2018 at 2 edt. Here is some info about the webinar
Join this webinar to learn about sexual abuse in nursing homes. Presenters will discuss a variety of topics to help you recognize the signs of sexual abuse and immediately respond to it.
We will examine the full scope of sexual abuse in nursing homes, including: (1) its prevalence, (2) the physical and social signs of sexual abuse, (3) who is most at risk, and (4) who the perpetrators are. In addition, you will learn the protections the federal nursing home rule provides for nursing home residents against this abuse and how to respond to the needs of victims. Finally, we will equip you with concrete knowledge on how ombudsmen can advocate for nursing home residents who are victims of this type of abuse, including hearing from a special presenter on the ombudsman role in the Washington Alliance to End Sexual Violence in Long-Term Care.
To register, click here
August 14, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink
Genetic Information Nondiscrimination -- Should Consumer Protections Apply to Long-Term Care and Disability Insurance?
While following the most recent Tour de France cycling competition, I was intrigued by the spectrum of "products"advertised on broadcasts of the race stages -- or, alternatively, on the increasingly popular medium of podcasts by commentators such as Lance Armstrong on The Move. On one end was the amusing use of bicycling footage from the new movie Mama Mia 2, spliced to make it appear actual TdF racers were just ahead of the maniacal cast. On the other end were advertisements for genetic testing via companies once better known for tracking family trees. If your TdF hero (or anti-hero?) Lance Armstrong was advocating the benefits of better genetic knowledge via Helix, would those consumers consider the potential ripple effects of such knowledge?
Kaiser Health News recently pointed to key issues:
The federal Genetic Information Nondiscrimination Act [of 2008] prohibits health insurers from asking for or using your genetic information to make decisions about whether to sell you health insurance or how much to charge. But those rules don’t apply to long-term-care, life or disability insurance.
When you apply for long-term-care insurance, the insurer may review your medical records and ask you questions about your health history and that of your family. It’s all part of the underwriting process to determine whether to offer you a policy and how much to charge.
If the insurer asks you whether you’ve undergone genetic testing, you generally have to disclose it, even if the testing was performed through a direct-to-consumer site like 23andMe, said Catherine Theroux, a spokeswoman for LIMRA, an insurance industry trade group.
In the current political climate, it seems unlikely that Congress would tackle a wider application of mandatory nondiscrimination policies connected to risk factors for additional insurance policies. Thus, if you are asked the questions, you have to tell the truth or be subject to disqualification from benefits if the company later learns, for example, you were aware you had genes associated with increased risk of dementia, but failed to disclose that fact in the application process, a factor relevant to underwriting. Timing can matter, as also suggested in the Kaiser Health News Report:
Some states provide extra consumer protections related to genetic testing and long-term-care insurance, said Sonia Mateu Suter, a law professor at George Washington University who specializes in genetics and the law. But most follow federal law. If you get genetic testing after you have a policy, the results can’t affect your coverage.
August 14, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Monday, August 13, 2018
I'm a fan of WITF-Radio's Smart Talk program even though it often "interferes" with my work day, as I linger to catch the entire broadcast. I'm such a fan that even when I'm out of town, I'll often listen to the program via live streaming or podcasts -- and when I'm the western part of the U.S. I can listen live without feeling guilty because of the time difference (3 hours in the summer ). One of the recent broadcasts had me listening twice.
The program began with a report on pending legislation in Pennsylvania, that could mandate lower patient-to-nurse ratios in hospitals. During the current legislative session, the two key items are House Bill 1500 and Senate Bill 214. A coalition of Pennsylvania nurses hand-carried a petition with 10,000 signatures to the Capitol demanding support for better staffing at hospitals. On the radio program the speakers -- all nurses -- agreed about the need for adequate coverage, but disagreed about whether mandated ratios were the right solution. Not surprising is opposition to mandated ratios coming from the hospital industry representatives; however the Pennsylvania State Nurses Association also resists mandatory ratios, arguing such ratios are "not flexible enough." HB 1500 would call for different ratios according to the type of unit, such as ratio of one nurse for every two patients in the neo-natal intensive care unit, with a higher ratio of 1 to 4 permitted in a pre-surgical unit.
The program drew a lot of callers. In fact there were so many callers, host Scott LaMar deferred plans for a different topic for the second half of the hour-long program in order to continue the staffing discussion. What I found particularly interesting was that many of the callers wanted to talk about staffing ratios in rehab facilities and nursing homes, not "just" hospitals, and part of the conversation was about whether the key ratios should consider all care staff and not focus solely on registered nurses. Here is the link to the podcast:
The calls reminded me of one terrifying, long night in a hospital with a relative after she had emergency surgery. She was "allowed" to use the toilet in the bathroom, rather than a bed pan, but because she wanted to go frequently, the night time staff began insisting she use a bedpan, so that they wouldn't have to attend her in the bathroom. The staff was hostile to my efforts to help (and in fact, I didn't have a clue as how best to help), but also would have left their patient perched uncomfortably on the bed pan for a half hour or more if I hadn't intervened. She began refusing to use her call button, insisting I help her to the bathroom, even though she was still attached to various lines and monitors. It was a catch-22 situation for me as a family member -- and also for the overworked staff. I remember my one firm conviction that night was that without a family member with her, we would have been adding broken bones to the list of woes for my loved one because of the staffing issues.
Friday, August 10, 2018
Kaiser Health News ran a story How Soon Is Soon Enough To Learn You Have Alzheimer’s? Do you want to know, or instead think just it's age-related memory loss?
The prospect of having Alzheimer’s can be so scary, and the current treatment options so few, that many people dismiss memory problems or other symptoms rather than investigate them, say Alzheimer’s specialists; it’s estimated that as many as half of all cases aren’t diagnosed.
But that may soon change. Researchers are making progress in measuring beta-amyloid and other Alzheimer’s biomarkers in blood that might eventually be able to reliably, inexpensively and non-invasively identify the disease years before cognitive symptoms develop.
Despite the scariness of the diagnosis, the article notes good reasons for early diagnosis, including discovering the underlying cause is a treatable condition, saving money "in terms of health costs and long-term care costs over the course of their lifetime," the time to plan for incapacity and "[r]esearchers hope that by getting more Alzheimer’s patients diagnosed early on, more people with the disease will, like Jose, be able to make the best of the health they have."
Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial
According to news reports, here and here, three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility. The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father. A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.
A North Dakota's statute, N.D.C.C. Section 14-09-10, with language that can be traced back to filial support laws of Elizabethan England, provides:
It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.
One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance: "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid." The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."
According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law. Such laws have been blocked or repealed in most other U.S. states. North Dakota and my own state, Pennsylvania, are the two most notable exceptions.
My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing.
- First, if the father was in the nursing home for 7 months, who did the children think was paying for his care? I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death).
- What was the basis for any denial for Medicaid? I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt? I'm not aware of any such rule at the federal level.
- Is there another member of the family involved in the application -- someone other than the three target children -- or is there another family member involved in any "transfers" causing an alleged ineligibility period? In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
- Finally, why weren't there care planning meetings with the family that included discussions of costs of care? It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.
Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.
August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, August 7, 2018
We have had a number of posts of late regarding medical aid-in-dying, so I was interested in this article in the Washington Post, Assisted suicide is controversial, but palliative sedation is legal and offers peace. The article opens relating one individual's experiences and explains that "[u]nder palliative sedation, a doctor gives a terminally ill patient enough sedatives to induce unconsciousness. The goal is to reduce or eliminate suffering, but in many cases the patient dies without regaining consciousness." The article makes a stark contrast between physician aid-in-dying, which is authorized in a handful of states, compared to "[p]alliative sedation [which] has been administered since the hospice care movement began in the 1960s and is legal everywhere." The article notes that palliative care is not without concerns, mainly moral lconcerns on the part of health care providers, with variations in policies throughout hospitals.
Where is the line between terminal sedation and euthanasia, ponders the article, with positions offered on both sides.
[M]any doctors who use palliative sedation say the bright line that distinguishes palliative sedation from euthanasia is intent. ... "There are people who believe they are the same. I am not one of them,” said Thomas Strouse, a psychiatrist and specialist in palliative-care medicine at the UCLA Medical Center. “The goal of aid-in-dying is to be dead; that is the patient’s goal. The goal in palliative sedation is to manage intractable symptoms, maybe through reduction of consciousness or complete unconsciousness.”
Others, including the National Hospice and Palliative Care Organization, recommend that providers use as little medication as needed to achieve “the minimum level of consciousness reduction necessary” to make symptoms tolerable.
The question often posed is whether terminal sedation will hasten death, and in some cases, no antibiotics, nutrition or hydration are provided and whether death occurs sooner depends in large part on the person's condition. As one expert noted, "in all cases the goal isn’t death but relief from suffering."
When is the use of terminal sedation appropriate? The article discusses its use to relieve "existential suffering" which is defined by "the hospice and palliative-care group ... as 'suffering that arises from a loss or interruption of meaning, purpose, or hope in life.'" In comparing it to aid-in-dying, it may provide an option for those who are not eligible for aid-in-dying assistance. "Whether palliative sedation truly ends suffering is not knowable, although doctors perceive indications that it does."
Monday, August 6, 2018
Here is a description of the webinar
Please join the EJI webinar on August 9, 2018, at 2:00 p.m. eastern time, as Nicole Sato, Deputy District Attorney, provides an overview of the role of a prosecutor at the MDT table. Learn how to strengthen collaboration with your team’s prosecutor by delving into their role, contributions, and professional perspective.
Join in a discussion about the ethical responsibilities of a prosecutor and the importance of multidisciplinary collaboration in the fight against elder abuse. The discussion will include the prosecutor’s perspective on what makes a good case; what are their parameters on an MDT; what they get out of MDT collaborations and how best to collaborate; and what they contribute. Plus, we will clear up some common assumptions and misconceptions regarding the parameters of their work.
To register for the webinar, click here.
The following day, August 10, 2018 at 2 p.m. edt, another webinar will be held, focusing on Elder Justice Initiative: The Role of Judges in an Elder Abuse Case
Judge Karen Howze will discuss the dynamics of elder abuse, relevant issues such as cognitive capacity, expert witnesses that may be required, reasonable courtroom accommodations, the advantages of elder abuse multidisciplinary teams, and the importance of judicial leadership on the issue of elder abuse. Judges play a critical role in adjudicating the wide array of elder abuse, neglect and financial exploitation cases that come before them. Elder abuse and fraud enter courtrooms both directly in civil and criminal cases, as well as indirectly (e.g., in the context of a guardianship proceeding), so there are many critical issues to discuss.
To register, click here.
Thursday, August 2, 2018
We blogged last week about the July 10, 2018 executive order that exempted the hiring of ALJs from the competitive process used up until then. NPR and the Washington Post did stories about the impact of the executive order on the ALJ hiring process, offering to some extent, two competing views of the outcome.
In Trump moves to shield administrative law judge decisions in wake of high court ruling explains the process typically used by federal agencies: "[w]hile individual agencies generally post their job vacancies and then assess and select candidates, they hire ALJs from a central list of applicants the Office of Personnel Management deems qualified." Referencing the recent Supreme Court decision that held that an ALJ for the SEC was not correctly appointed, the ALJ "therefore was not authorized to decide in the case, which involved a penalty against an investment adviser. [Further] [t]hat decision opens the door to similar challenges across all agencies since their ALJs were selected in the same way, often by a lower-level official who had relatively little choice of candidates from the list, said James Sherk, special assistant to the president for domestic policy" who indicated in an interview that a large number of challenges on that point have been filed and that the executive order will hopefully "protect agencies against challenges to the legitimacy of their ALJs." The article also discusses the potential for politically-based hiring decisions. It also notes that certain hearing offiers are called ALJs; but the executive order won't "apply to hiring of immigration judges or other agency-level hearing officers who in some contexts are generically referred to as administrative law judges...."
NPR's story, Trump Changes How Federal Agency In-House Judges Are Hired notes that the ALJs covered include Medicare. Focusing more on the potential political ramifications of the executive order which basically makes the ALJs political appointees, the NPR story quotes "the president of the American Constitution Society [who] in a statement specifically pointed to possible repercussions with the Social Security Administration. 'Administrative law judges handle Social Security disability cases. This administration is on record as wanting to lessen benefits. It's likely that a political ALJ appointed by this administration would rule against the beneficiaries and deny claims.'"
In McKnight's Long-Term Care News, guest columnist Tim Ford, a New Jersey attorney, tackles the challenging issues surrounding the use of so-called "Granny Cams" in care facilities. Where families are worried about the quality of care, they may attempt to install a hidden camera in the loved one's room. Or, a facility might want to use such cameras to monitor its own employees. Should states regulate such use? Should states restrict or even prevent use?
First, a little background. Texas was the first state to directly address the issue of granny cams. In 2001 it enacted a statute providing that a nursing home or related institution "shall permit a resident or the resident's guardian . . . to monitor the room of the resident through the use of electronic monitoring devices." Notice of surveillance was required to be posted at the entrance to the facility and the resident's room. The state later added regulatory limitations on use of such cameras, and the authorizing statutes were also amended in 2015.
Tim Ford's column updates the history and points to the need for further legislative clarity:
At least nine U.S. states have enacted statutes regarding the use of granny cameras. Approximately fifteen other states have proposed statutes or regulations but have not moved forward with implementation. The law is not consistent and sometimes does not even exist for many states. It is critical for a nursing home owner to know the status of the granny camera laws wherever they operate facilities, and to make the necessary adjustments to their staff and resident policies. In certain states, the nursing home is prohibited from banning the use of granny cameras, as long as the resident or family member adheres to certain guidelines.
For more, read Examining the Issues of Granny Cameras in SNFS.
Wednesday, August 1, 2018
How do you find participants for clinical drug trials, especially if related to the dreaded "A" word, Alzheimer's disease? As outlined in The New York Times, such recruitment is not easy.
There are 5.4 million Alzheimer’s patients in the United States. You’d think it would be easy to find that many participants for a trial like this one. But it’s not. And the problem has enormous implications for treatment of a disease that terrifies older Americans and has strained families in numbers too great to count.
The Global Alzheimer’s Platform Foundation, which is helping recruit participants for the Lilly trial, estimates that to begin finding participants, it will have to inform 15,000 to 18,000 people in the right age groups about the effort. Of these, nearly 2,000 must pass the initial screening to be selected for further tests to see if they qualify.
Just 20 percent will meet the criteria to enroll in Lilly’s trial: They must be aged 60 to 89, have mild but progressive memory loss for at least six months, and have two types of brain scans showing Alzheimer’s is underway. Yet an 80 percent screening failure rate is typical for Alzheimer’s trials, said John Dwyer, president of the foundation. There is just no good way to quickly diagnose the disease.
The onerous process of locating just 375 patients illustrates a grim truth: finding patients on whom to test new Alzheimer’s treatments is becoming an insurmountable obstacle — no matter how promising the trial.
For more, read, For Scientists Race to Cure Alzheimer's, the Math is Getting Ugly. My thanks to colleague Laurel Terry for passing this article on to us.
Monday, July 30, 2018
Yesterday I blogged about a story in Kaiser Health News on the payroll reporting by SNFs that Medicare uses to determine staffing levels. KHN also has examined the data to see if there is a correlation between staffing and a resident's care. Mining A New Data Set To Pinpoint Critical Staffing Issues In Skilled Nursing Facilities notes that "[i]n April, Medicare began using [the payroll records, known as the payroll-based journal or PBJ] to rate staffing for more than 14,000 skilled nursing facilities (SNFs). The PBJ data gives a much better look at the how staffing relates to quality of care than the less precise — and too easy to inflate — staffing data Medicare had been using since 2008, which were based on two-week snapshots of staffing homes provided to inspectors. The data show staffing and occupancy on every day — an unprecedented degree of granularity that allows for new levels of inquiry."
The author offers
Low staffing is a root cause of many injuries in nursing homes. As I wrote in the article published in The New York Times based on the data: “When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.”
The author describes in detail the decisions that were made in crunching the data, using "two intersecting principles: to reflect residents’ lived experience as accurately as possible, and to be fair to the facilities. When in doubt, [the author] erred on the side of caution."
As an aside, the author notes the acronym for Payroll-Based Journal is PBJ!
A recent story in Kaiser Health News reports that almost 10% of SNFs have lower ratings because of staffing ratios. 1,400 Nursing Homes Get Lower Medicare Ratings Because Of Staffing Concerns explains that "Medicare has lowered its star ratings for staffing levels in 1 in 11 of the nation’s nursing homes — almost 1,400 of them — because they either had inadequate numbers of registered nurses or failed to provide payroll data that proved they had the required nursing coverage ...." This information is reported as a result of the ACA, where in the past, the SNFs just reported staffing numbers. The results of this reporting change are interesting. "The payroll records revealed lower overall staffing levels than homes had disclosed, particularly among registered nurses. Those are the highest-trained caregivers required to be in a nursing home, and they supervise other nurses and aides. Medicare mandates that every facility have a registered nurse working at least eight hours every day."
One industry representative quoted in the article noted that there is a "workforce shortage." There is a caveat to using the information, as the article explains. "Medicare concedes that because the payroll system is geared toward reporting hourly work, salaried staff may not always be reflected correctly, especially if they were working overtime. But Medicare had warned the nursing homes in April that the downgrades would be coming if facilities continued to show no registered nurses on duty. The agency noted it has been preparing nursing homes since 2015 for the new payroll system."
Kaiser analyzed the data and in the article notes a difference between for-profit and non-profits as far as staffing numbers. The article also notes daily fluctuations in staffing, and especially fluctuations in staffing on weekends.
Staffing data is very useful for families in choosing a nursing home so this new data collection is definitely a step in the right direction!
On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit.
The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers. The trial judge would allow only $1 million in settlement funds to be placed in trust.
In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:
The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . .
Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.
The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back first, before any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A); I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . . Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.
The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."
July 30, 2018 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, July 25, 2018
A recent reader asked about what happened in the Sears Methodist Retirement System bankruptcy case in Texas for residents who had paid a "refundable" entry fee before the company filed for reorganization under Chapter 11 of the Bankruptcy Code. In addition to sharing some legal documents in a recent update, I promised readers to reach out to contacts to get more of the story. I heard from a long-time correspondent, Jennifer Young. Here is her important story:
I am Jennifer Young. Prior to retirement I worked in Human Resources. I am currently a resident of a CCRC in North Carolina. I moved to North Carolina in 2015 after an unsatisfactory experience in a CCRC in Texas.
Here is what happened to me in Texas. I was a resident of a CCRC, one of the Sears Methodist Retirement Service (SMRS) communities, operated under nonprofit tax rules. There were 5 CCRC operations in the SMRS system, along with 2 subsidized senior housing complexes, an Assisted Living facility, and the management of 3 state veterans’ homes. Eleven communities in all. I managed to move into my CCRC just two years before SMRS filed for protection in bankruptcy court under Chapter 11.
My community was a Type C, 90% refund contract. Our CCRC was brand new, with the entrance fees of those moving in pledged to debt service for the construction loan. SMRS’ decision to break ground on the newest of their CCRCs in 2009 (in the middle of a recession) should have been my first red flag, but I was too wrapped up in the process of choosing a desirable lot and influencing the construction of our future cottage in my own community to think about the long-term implications of that management decision.
As I learned the hard way, the unsecured status of entrance fees meant that residents were “unsecured creditors” in the bankruptcy process; hence, I was advised to apply for a seat on the court’s Unsecured Creditor Committee. I did and served on this committee from the summer of 2014 until it was dissolved in the spring of 2015. Per Bankruptcy Court procedures, these Committees routinely hire a law firm (with fees paid by the bankrupt estate). Residents were lumped in with all of the other unsecured creditors. Meetings were conducted telephonically because committee members were quite scattered geographically. For example, one vendor of therapy services wasn’t headquartered in Texas.
I don’t remember whether the judge issued a formal order about the pre-petition refundable entrance fees, but I know all parties did not want residents to be financially harmed. They were worried about the very negative impact of residents losing their entrance fees, as happened during the 2009 bankruptcy of a Pittsburgh, Pennsylvania CCRC, Covenant of South Hills. A second such outcome, especially for a large, multi-facility community, would have been devastating to the continuing care industry as a whole.
In the Texas bankruptcy process, the court set up an interim manager (not from SMRS) who worked closely with attorneys from all parties in reviewing the offers from potential new owners. As a member of the above-mentioned Committee, I would hear that new owners MUST be willing to accept the current Residency Agreements (contracts). So “applications” to buy were screened in that regard; however, the Committee and the open court procedures did not reveal details regarding all the letters of intent that were submitted. They may have been buried in tons of documents, but I don’t know for sure.
There was an announcement in the fall of 2014 that another Texas non-profit wanted the CCRCs, and all parties seemed content with this prospect. However, that fell through, as this potential new owner’s Board put the kabosh on the deal. To simplify the complexities of the process, let’s just say that for the communities that were not “picked off” during the fall months, there was an auction in January 2015. In contrast, SMRS’ Assisted Living facility was purchased without an auction and its Subsidized Housing facilities went back to HUD.
Tuesday, July 24, 2018
We have blogged in the past on the family caregiver shortage heading our way. Some might even call it a crisis as the baby boomers relentlessly age on in large numbers. On Monday, one item in Kaiser Health News daily briefing offers this headline For Generations, Nation Has Relied On Family Caregivers. But Shifting Social Dynamics Could Leave A Vacuum.The Wall Street Journal examined this issue in America Is Running Out of Family Caregivers, Just When It Needs Them Most(subscription required). The article opens with a focus on one elder who has no children. Who will be her caregiver? "For generations, the nation has relied on family members to keep aging loved ones in their homes. Today, many Americans are growing older without family nearby, offering a glimpse of what the future may hold for the cohort of Americans who are approaching retirement."
The article pains a somewhat distressing picture of the future facing many older Americans, with low incomes, substantial debt (the article notes some of which may be from caring for their parents), and no family or nearby family to be caregivers. Currently nearly 95% of caregivers are family providing approximately "$500 billion worth of free care annually [yes you read that correctly--BILLION]—three times Medicaid’s professional long-term care spending—and help keep people out of costly institutions, according to a 2017 Merrill Lynch study." That sounds wonderful, but here is where this is all about to fall apart: "the supply of these caregivers is shrinking just as the nation needs them most. Every day, 10,000 people turn 65. In 2020, there will be 56 million people 65 and older, up from 40 million in 2010" while the number of available caregivers is shrinking, for a variety of reasons. Are there other options? Yes-private sector, but that's expensive and home health aides may be in limited supply. We already know about the limited benefits through Medicare and Medicaid. Boomers, no strangers to being part of the sandwich generation, may now find themselves in a different type of sandwich-they may be providing care for their parents and will perhaps need care for themselves or their spouses. Families are far flung, so caregiving from afar may be a new model. "Children do what they can from hundreds of miles away, checking references for an aide, managing bills, or arranging grocery deliveries. They often feel guilty for not being there to take a parent to the doctor and uncertain about how someone is really doing."
Technology (and there are a lot of cool options out there) may be offered as a mode of caregiving, perhaps even a substitute for an in person caregiver, but technology is not without limits. In some areas volunteers are filling in the gaps but of course, funding and sufficient volunteers can be an issue.
So what should these "elder orphans" do? "One-third of middle-age adults are heading toward their retirement years as singles. Women, in particular, are likely to stay or become single as they age....About 14% of frail older adults, or two million people, are without children and the number is expect to double by 2040, according to the AARP Public Policy Institute. “There’s no natural caregiver for this population,” says Grace Whiting, CEO of the National Alliance for Caregiving....While they can, they need to construct a network around themselves, aging experts say."
The article concludes with 5 recommendations, including local area agencies on aging, transportation, private companies, technology and remodeling a home to make it accessible. To that list I'd add, make a plan and talk to your elder law attorney about it. This is a comprehensive article that would be a good basis for a class discussion!
Monday, July 23, 2018
Hurricane season started June 1 and runs through November. You may recall the tragedy that happened in Florida and the response from Florida requiring SNFs to have generators. So are nursing homes ready for hurricane season in Florida and elsewhere? Bloomberg Law ran this story, Nursing Homes Cautiously Wade Into Hurricane Season.
Nursing homes are reviewing and updating their processes to comply with emergency planning regulations that took effect last November, according to the Washington-based American Health Care Association. Some outside the industry worry, though, that weaknesses still exist—and could put seniors at risk once again. They point to a lack of bite in federal oversight and to limited resources challenging change in institutional care.
One sobering note in the article provided these statistics nationwide: CMS "found more than 1,850 incidents of nursing homes failing to have written emergency evacuation plans between 2011 and 2018, and 3,770 nursing home violations of requirements to inspect power generators weekly and test them monthly...." This data came from "a record review of CMS’s Nursing Home Compare safety deficiency data."
What about Florida? The article notes that Florida is on the right path...but.... "Nursing homes are now “generally much more prepared” for 2018’s hurricane season than they were a year ago, creating plans for emergency power and evacuation ... [and Florida's Agency for Health Care Administration] said the agency would do everything it could to “strictly” hold senior care facilities to the letter of the law, such as fines for noncompliance." Even though the Florida SNFS are following the rules, "just 165 of the 684 providers have implemented a plan and the rest have requested extensions, according to the AHCA’s live tally July 19. Fewer assisted living facilities are in compliance at nearly 73 percent (or 2,260 providers)."
This all sounds good, but if another storm strikes, we may find this isn't enough. One expert in the article pointed out the lack of action at the federal level, offering that "the federal government hasn’t implemented any robust standards changes or safeguards, and there’s “no reason” to believe the same flaws don’t exist this time around...."
The article discusses the issues with lack of resources (isn't that an issue, regardless of hte problem), how there really isn't a one-size-fits-all solution (Oklahoma has tornadoes, but not hurricanes) and the different regulation of SNFs and ALFs.
CMS did act in 2016, unveiling "'all-hazards,' four-pronged approach for nursing home disaster preparation in 2016 that senior care facilities were subject to following the worst of last year’s storms. [CMS required] a facility and community provider risk assessment taking into consideration a provider’s regional susceptibility to different types of emergencies. Providers then had to develop protocols to be reviewed and updated annually for handling potential threats. That extended to the ability to provide care but also equipment and power failures, building or supply loss, and communication flow breaches such as cyberattacks....Nursing homes were also required to develop a communications plan in case of emergency across providers, staff, state and local public health departments, and emergency management agencies, according to the CMS rule (RIN:0938-AO91). And they have to train employees and test and update their emergency plans annually."
Let's hope that we don't have a repeat of those images from last year's storms in Texas and Florida. Advise clients to ask a facility for a copy of their disaster plan and learn about any contracts they have signed with transportation companies to provide evacuation transportation. Also, how does the facility decide whether to evacuate or shelter in place. Cross your fingers-We have 4 months left of hurricane season.
Thursday, July 19, 2018
During a session at the first day of the 21st Annual Pennsylvania Elder Law Institute, we had an interesting dialogue about how best to utilize Physician Orders of Life-Sustaining Treatment (POLST) forms. One attorney described how clients sometimes arrive at her law firm for advice on various estate planning matters, including a blank POLST form that was given to them in the hospital. The client asks, in essence,"what should I do with this?" One attorney said she walks through the form with clients, but always emphasizes that the most important part of the process is the conversation with the client's physician about her choices that should be happening before completing the document.
Along that line, there is a timely post on the Health Affairs Blog today, with the headline "Counting POLST Form Completion Can Hinder Quality." The authors, two physicians in Oregon, describe an incident in which a patient reported feeling pressured at a hospital to complete a POLST form, and they raise the potential for the pressure being a side effect of that patient's health plan keeping track of frequency of completion of POLSTs or other advance directives for all patients 65 or older, marking a high rate of completion as success. They observe:
Many stakeholders have been concerned about how best to measure the quality of advance care planning and use of the POLST form. Some health plans and payers measure the frequency of POLST form completion without a clearly delineated eligible denominator population. Use of such a metric erodes the quality of the POLST program as the following case illustrates. . . .
When health care professionals encourage patients who are “too healthy” to complete a POLST form (instead of an advance directive), even when orders are for “CPR/Full Treatment,” they may cause harm. If the patient later loses decision-making capacity and clinically deteriorates to a condition in which he or she would have desired a comfort-oriented approach, the presence of the inappropriate POLST may increase the decision-making burden on the family. Another concern is that some healthy patients have been denied life insurance because their medical record inappropriately includes a POLST form; the company incorrectly believing the patient has a limited life expectancy.
The authors argue persuasively that:
Accordingly, we do not believe that POLST forms should be mandated or counted as a quality measure. Instead, POLST quality measures should count conversations about patients’ goals for care as they near the end of their lives.
I recommend the full article, linked above, including review of their "seven imperatives to preserve POLST quality."
July 19, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Weblogs | Permalink | Comments (0)
Tuesday, July 17, 2018
McKnight's Senior Living Newsletter editor Lois Bowers wrote an article that alerted me to the June 2018 publication of a new study of unlicensed residential care facilities. From the abstract:
Residential care facilities operating without a state license are known to house vulnerable adults. Such unlicensed care homes (UCHs) commonly operate illegally, making them difficult to investigate. We conducted an exploratory, multimethod qualitative study of UCHs, including 17 subject matter expert interviews and site visits to three states, including a total of 30 stakeholder interviews, to understand UCH operations, services provided, and residents served. Findings indicate that various vulnerable groups reside in UCHs; some UCHs offer unsafe living environments; and some residents are reportedly abused, neglected, and financially exploited. Regulations, policies, and practices that might influence UCH prevalence are discussed.
The study included visiting unlicensed facilities in Georgia, North Carolina and Pennsylvania.
For the full report see Unlicensed Care Homes in the United States: A Clandestine Sector of Long-Term Care, by Michael Lepore, Angela M. Greene, Kristie Porter, Linda Lux, Emily Vreeland, and Catherine Hawes, published in the Journal of Aging and Social Policy.
July 17, 2018 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)