Tuesday, January 31, 2017
The New York Times ran an article about the use of robots for elders. Seniors Welcome New, Battery-Powered Friends explains retirement communities are among the leaders of testing out new technologies. "Early adopters ... are on the front lines of testing new technologies that some experts say are set to upend a few of the constants of retirement. Eager not to be left behind, retirement communities are increasingly serving as testing grounds that vet winners and losers."
Here is something that I thought particularly interesting regarding technology development pointed out in this article. "Some technologists see the most promise in the social dimensions. For too long, technology has been chasing problems rather than trying to delight human beings, said Joseph Coughlin, director of the AgeLab at the Massachusetts Institute of Technology. “Where are the devices that help us learn and expand our horizons?” he said."
The article explores the advantages of robot companions with some of those designed specifically for neophytes of technology. For example, one company has developed a robot that requires little tech expertise to use, and the robot "is connected to Wi-Fi and operated remotely. In its next iteration, the company is working on training the robot to pick up objects... [The company's] robots will be offered by a consumer health firm ... to retirement communities and people aging in place. The yearly cost is about 20 percent of the cost, on average, of hiring full-time caregivers...." The article explores the role of elders in testing tech products and the value of the feedback that they give.
I love technology "stuff" and can't wait for the next new shiny thing. But, I am concerned if we begin to rely on technology solely as the means of providing caregiving. I can't wait to have my own personal robot, but will it give good hugs?
Monday, January 30, 2017
The Denver Post ran an article recently that some Colorado hospitals are opting out of the new aid-in-dying law. About 30 hospitals opting out of Colorado’s medical aid-in-dying law, Three major health systems have announced they will not participate explains that
Up to 30 Colorado hospitals are opting out of the state’s new medical aid-in-dying law, either fully or in part, but whether that means the doctors they employ are banned from writing life-ending prescriptions is a controversy that could wind up in court.
At this point, terminally ill Coloradans who want to end their lives under the law will need to find out whether their physicians are allowed to participate.
The article explains that whether the ban applies to doctors for those hospitals depends on the hospital. For example, one hospital group has said that the doctors could "talk to their patients about aid in dying and can write life-ending prescriptions in a hospital. But hospital pharmacies will not fill those prescriptions and patients are not allowed to take their own lives in the hospital, which health officials figure is an unlikely request anyway." The proponents of the law take a different view on whether the ban prevents the doctors from writing the prescriptions, but indicate litigation may be needed to decide the matter.
The article explains the provision of the law
The law says a hospital may prohibit an employed or contracted physician from writing a prescription for someone “who intends to use the aid-in-dying medication on the facility’s premises.” It also makes clear that a healthcare provider can choose whether to participate in medical aid in dying and that the provider must transfer the patient’s medical records to a new health care provider if requested.
With the different interpretation of the law, it may be that litigation will be necessary to figure this out. Stay tuned.
Thursday, January 26, 2017
From the Los Angeles Times, there is this interesting account from the antitrust lawsuit examining the proposed merger of Aetna and Humana health organizations:
Aetna claimed this summer that it was pulling out of all but four of the 15 states where it was providing Obamacare individual insurance because of a business decision — it was simply losing too much money on the Obamacare exchanges.
Now a federal judge has ruled that that was a rank falsehood. In fact, says Judge John D. Bates, Aetna made its decision at least partially in response to a federal antitrust lawsuit blocking its proposed $37-billion merger with Humana. Aetna threatened federal officials with the pullout before the lawsuit was filed, and followed through on its threat once it was filed. Bates made the observations in the course of a ruling he issued Monday blocking the merger.
Aetna executives had moved heaven and earth to conceal their decision-making process from the court, in part by discussing the matter on the phone rather than in emails, and by shielding what did get put in writing with the cloak of attorney-client privilege, a practice Bates found came close to “malfeasance.”
Tuesday, January 24, 2017
Financial Security For Middle Class Families.
Forty Percent Of People Who Reach Age 65 Will Need Nursing Home Care.
Peace Of Mind For Middle Class Families.
Millions Of Americans Are Providing Care And Support Today To An Older Adult.
Ensuring Skilled Dementia Care
Essential Protections For Frail Elderly And Their Families
Preserving Life In The Community.
Delirium and dementia are common causes of cognitive impairment in older populations. Although each may occur independently, delirium and dementia frequently coexist. Dementia is a leading risk factor for delirium, and there is an increased incidence of new dementia and cognitive decline after delirium. Delirium can accelerate the rate of cognitive decline, suggesting that an episode of delirium can result in a more rapid progression of dementia symptoms, leading to earlier functional disability, increased caregiver burden, and rising health care costs. As the population ages, there has been a rapid increase in the incidence and prevalence of delirium and dementia. Better understanding of the risk factors, outcomes, and mechanistic associations between these 2 conditions is therefore critical for developing successful prevention and treatment strategies for this increasing problem.
The conclusions and relevance from the article offers this:
CONCLUSIONS AND RELEVANCE Delirium in the presence of the pathologic processes of dementia is associated with accelerated cognitive decline beyond that expected for delirium or the pathologic process itself. These findings suggest that additional unmeasured pathologic processes specifically relate to delirium. Age-related cognitive decline has many contributors, and these findings at the population level support a role for delirium acting independently and multiplicatively to the pathologic processes of classic dementia.
Friday, January 20, 2017
We blogged previously that D.C.'s mayor signed the physician-aided dying bill that was then sent to Congress. According to a January 9, 2017 article in the Washington Post, Congressman plans to block D.C. law to let terminally ill patients end their lives, "Representative Jason Chaffetz (R-Utah) said ... he’ll use rarely invoked congressional authority to block a new law passed by the D.C. Council to allow doctors to help end the lives of terminally ill patients in the city" by the end of January. The article notes that it's rare for Congress to block a D.C. law. On January 12, 2017 Senator Lankford and Representative Wenstrup (Oklahoma and Ohio respectively) introduced resolutions to block the law.
January 20, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Under long-standing IRS rules, IRAs and similar retirement accounts created with tax deferred income are generally subject to "required minimum distributions" when the account holder reaches age 70 and a half. As the IRS.gov website reminds us:
- You can withdraw more than the minimum required amount.
- Your withdrawals will be included in your taxable income except for any part that was taxed before (your basis) or that can be received tax-free (such as qualified distributions from designated Roth accounts).
As the Wall Street Journal recently reported, as baby boomers are now reaching that magic age of 70 1/2+, there will be huge mandatory transfers of savings, creating taxable income, even if they don't actually need the retirement funds yet.
Boomers hold roughly $10 trillion in tax-deferred savings accounts, according to an estimate by Edward Shane, a managing director at Bank of New York Mellon Corp. Over the next two decades, the number of people age 70 or older is expected to nearly double to 60 million—roughly the population of Italy.
The account holders may not actually "need" the money in their early 70s, an age now often seen as "young" for retirement, and they may still be in high tax brackets, thus cancelling the original reasons for the savings and deferral. The rules were made when average lifespans were shorter.
On average, men and women who turned 65 in 2015 can expect to live a further 19 and 21.5 years respectively, according to the U.S. Social Security Administration’s most recent life-expectancy estimates; those post-65 expectancies are up from 15.4 and 19 years for those who turned 65 in 1985.
....[D]istributions are expected to grow exponentially over the next two decades because of a 1986 change to federal law designed to prevent the loss of tax revenue. Congress said savers who turn 70½ have to start taking withdrawals from tax-deferred savings plans or face a penalty. Specifically, retirees who turn 70½ have until April of the following calendar year to pull roughly 3.65% from their IRA and 401(k) funds, subject to slight differences in the way the funds are treated by the Internal Revenue Service. Then they must withdraw an increasing portion of their assets every year based on IRS formulas. The rules don’t apply to defined-benefit pensions, where retirees get automatic distributions.
There is a 50% penalty for failure to make required minimum withdrawals. And not all retirees are aware of the consequences of failing to make with withdrawals, especially when accounts were created originally by a spouse who is no longer alive or is unable to manage the account personally. From the Wall Street Journal article:
Bronwyn Shone, a financial adviser in Pleasanton, Calif., said many of her clients aren’t aware of their legal obligation to take distributions. “I think some people thought they could let the money grow tax-deferred forever,” she said.
Certainly the federal government wants -- and an argument can certainly be made that it "needs" -- more tax revenues, but if the goal of the permitted deferral is to encourage saving for the the "real" needs of retirement, which can include disability, health care, long-term care, and other "late in aging" needs, is it still realistic to set the mandatory threshold for withdrawals at age 70.5? For example, Donald Trump is just today commencing his "new job" at age 70 and a half, and yet he could be subject to the RMDs for any IRAs. Maybe this is a financial issue that might interest the new Trump Administration?
For more, read Pulling Retirement Cash, but Not by Choice, by WSJ reporters V. Monga and S. Krouse (paywall protected article from 1/16/17).
Thursday, January 19, 2017
The New York Times has a recent article that resonates with me. I am spending my sabbatical time in Arizona in order to be of more help to my sister with our parents who are both in their 90s. Neither my sister or I have children and we sometimes question what will happen with us if we reach our parents' age with similar needs. Here's an excerpt from the piece that gets right to the point:
While the demand for caregivers is growing because of longer life expectancies and more complex medical care, the supply is shrinking, a result of declining marriage rates, smaller family sizes and greater geographic separation. In 2015, there were seven potential family caregivers for every person over 80. By 2030, this ratio is expected to be four-to-one, and by 2050, there will be fewer than three potential caregivers for every older American.
For more, read the thoughtful essay Who Will Care for the Caregivers? by Dr. Dhruv Khullar, a resident physician at Massachusetts General Hospital and Harvard Medical School.
Wednesday, January 18, 2017
Seton Hall Law School's Center for Health & Pharmaceutical Law & Policy notified us of the inaugural Mid-Atlantic Health Law Works-in-Progress Retreat, which will be held on February 10, 2017, at Seton Hall Law School in Newark, New Jersey, from 9:00-4:30, followed by a reception. The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting.
This year's retreat will consist of in-depth discussions of the following draft papers:
- Julie Agris (Stony Brook), "A Legal Standard to Empower the Delivery of High Quality Patient Care: The 'Professional Judgment' Standard in the HIPAA Privacy Rule"
Commentators: Gaia Bernstein (Seton Hall), Robert Field (Drexel)
- Adam Kolber (Brooklyn), "Supreme Bioethical Bullshit"
Commentators: Stephen Latham (Yale), Kim Mutcherson (Rutgers)
- Craig Konnoth (University of Pennsylvania), "Side Effects"
Commentators: Lewis Grossman (American), Jennifer Herbst (Quinnipiac)
- Gwendolyn Roberts Majette (Cleveland Marshall), "The ACA's New Governing Architecture and Innovative State Delivery System Reform Initiatives in the Age of a New Presidency"
Commentators: John Cogan (Connecticut), Lauren Roth (NYU)
- Govind Persad (Johns Hopkins), "The Law and Ethics of Paying Patients"
Commentators: Christina Ho (Rutgers), John Jacobi (Seton Hall)
- Kristen Underhill (Columbia), "Righting Research Wrongs: Institutional Uses of Alternative Dispute Resolution in Human Subjects Research"
Commentators: Scott Burris (Temple), Carl Coleman (Seton Hall)
Seton Hall Professor Carl Coleman advises the retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the mid-Atlantic area. If you are interested in attending, RSVP to Carl Coleman at mailto:firstname.lastname@example.org by February 3.
Draft papers will be circulated by the last week of January, and all attendees will be expected to have read the papers before the retreat.
Intriguing titles and interesting topics. Our thanks to Carl for alerting us to the opportunity to participate in the discussions.
Tuesday, January 17, 2017
Kaiser Health News ran a story about a project that provides palliative care to individuals who are homeless and terminally ill. Mobile Team Offers Comfort Care To Homeless At Life’s End covers a pilot project in Seattle. "Since January 2014, the pilot project run by Seattle/King County Health Care for Homeless Network and UW Medicine’s Harborview Medical Center has served more than 100 seriously ill men and women in the Seattle area, tracking them down at shelters and drop-in clinics, in tents under bridges and parked cars." The project is funded through 2017 and is designed to avoid unneeded or unwanted care at the end of life while giving people who are homeless input in their care. The care providers arrange for the clients to get medical treatment (through Medicaid or pro bono care), follow up with patients, help patients make decisions and care for them so they don't die alone.
The mobile program has some advantages over other existing programs, such as going to where the patients are located and the providers are "more likely to engage the hardest-to-reach patients, those distrustful of medical care and outsiders...." Although the medical treatment is important, so far, the team is finding that coordination of care is a huge benefit of the mobile program. Mobile palliative care programs do exist worldwide, but aren't prevalent in the U.S. "Worldwide, there are only a few other mobile palliative care programs, all outside the U.S. The closest one in North America is the Palliative Education and Care for the Homeless program — known as PEACH — in Toronto."
With the new Presidential administration ahead, many of us are asking what government policies or programs will be "re-imagined." With changes on the horizon, an especially interesting perspective on long-term care is offered by UCLA Law Professor Allison Hoffman with her recent article, "Reimagining the Risk of Long-Term Care," published in the Yale Journal of Health Policy, Law & Ethics. From the abstract:
While attempting to mitigate care-recipient risk, in fact, the law has steadily expanded next-friend risk, by reinforcing a structure of long-term care that relies heavily on informal caregiving. Millions of informal caregivers face financial and nonmonetary harms that deeply threaten their own long-term security. These harms are disproportionately experienced by people who are already vulnerable--women, minorities, and the poor. Scholars and policymakers have catalogued and critiqued these costs but treat them as an unfortunate byproduct of an inevitable system of informal care.
This Article argues that if we, instead, understand becoming responsible for the care of another as a social risk--just as we see the chance that a person will need long-term care as a risk--it could fundamentally shift the way we approach long-term care policy.
As one informal caregiver and scholar described: “I feel abandoned by a health care system that commits resources and rewards to rescuing the injured and the ill but then consigns such patients and their families to the black hole of chronic ‘custodial’ care.” What next friends do for others is herculean, both in terms of the time spent and the ways that they offer assistance.
January 17, 2017 in Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, January 16, 2017
So Meals on Wheels has an idea. We all know the dangers of isolation and how important it can be to check in with an elder on a regular basis. Kaiser Health News explains the idea, Meals On Wheels Wants To Be The ‘Eyes and Ears’ For Hospitals, Doctors. "Meals on Wheels, which has served seniors for more than 60 years through a network of independent nonprofits, is trying to formalize the health and safety checks its volunteers already conduct during their daily home visits to seniors. Through an ongoing campaign dubbed “More Than a Meal,” the organization hopes to demonstrate that it can play a critical role in the health care system."
Many nonprofits face challenges, including funding challenges, and Meals on Wheels is no exception. There are competitors now, less funding and increasing demand for services. So how would this work? "Meals on Wheels America and several of the local programs around the country have launched partnerships with insurers, hospitals and health systems. By reporting to providers any physical or mental changes they observe, volunteers can help improve seniors’ health and reduce unnecessary emergency room visits and nursing home placements, said Ellie Hollander, CEO of Meals on Wheels America." It's a very cost-effective system according to the article and has the potential for bigger savings in health care costs.
There has already been some research done on the effectiveness and advantages of Meals on Wheels. Consider this:
Studies conducted by Brown University researchers have shown that meal deliveries can help elderly people stay out of nursing homes, reduce falls and save states money.
Kali Thomas, an assistant professor at Brown University School of Public Health, estimated that if all states increased the number of older people receiving the meals by 1 percent, they would save more than $100 million. Research also has shown that the daily meal deliveries helped seniors’ mental health and eased their fears of being institutionalized.
There are projects taking place, with one between Meals on Wheels, Brown U and West Health Institute. Another is with Meals on Wheels, Johns Hopkins Bayview Medical Center and Meals on Wheels of Central Maryland, which will attempt "to keep seniors at home and reduce their need for costly health services after hospitalization. The idea is to have trained volunteers report red flags and ensure, for example, that patients with congestive heart failure are weighing themselves regularly and eating properly." The Maryland project is being run by Dr. Dan Hale (friend and former colleague at Stetson U).
Sounds like a great idea!
Friday, January 13, 2017
The plight of 108-year-old Ohio resident Carrie Rausch, facing the prospect of losing her spot in an assisted living community because she's run out of money, is generating a lot of attention in the media, including People magazine. Some states, such as New Jersey, have expanded the options for public assistance in senior living -- beyond nursing homes -- to permit eligible individuals to use Medicaid for residential care. Assisted living is usually much less expensive than a nursing home; but the pool of individuals who would might opt for assisted living rather than the "dreaded" nursing home is also larger. Ohio, along with many states, hasn't gone the AL route:
If Rausch can’t raise the money needed, she’ll have to leave what has been her home for the past three years and move into a nursing home that accepts Medicaid.
[Daughter] Hatfield worries about the toll the move would take on her mom, who is more lively and active than most people 10 or even 20 years her junior. . . . “We need a miracle,” she says.
Ms Rausch's adult daughter -- herself in her late 60s -- has turned to GoFundMe to attempt to raise the $40k needed for a year of continued residence, and as of the date of this Blog post, more than 700 donors have responded.
At a deeper level, however, this story reveals important questions about public funding for long-term care on a state-by-state basis. This funding issue is repeating itself throughout the country for seniors much younger than the frugal and relatively healthy Carrie Rausch. On a national basis, GoFundMe "miracles" seem an impractical solution.
Thursday, January 12, 2017
Who doesn't want to be a super "something"? How about a Superager? What is a Superager anyway? (and no, capes and tights are not needed). According to a recent story in the NY Times, Superagers are "those whose memory and attention isn’t merely above average for their age, but is actually on par with healthy, active 25-year-olds." How to Become a ‘Superager’ reports on a study of the brains of Superagers to figure out what makes them so.
How do you become a Superager? Well, the researchers aren't quite ready to tell us that yet.
Of course, the big question is: How do you become a superager? Which activities, if any, will increase your chances of remaining mentally sharp into old age? We’re still studying this question, but our best answer at the moment is: work hard at something. Many labs have observed that these critical brain regions increase in activity when people perform difficult tasks, whether the effort is physical or mental. You can therefore help keep these regions thick and healthy through vigorous exercise and bouts of strenuous mental effort.
There is a downside to becoming a Superager, according to the story. The author explains
The road to superaging is difficult, though, because these brain regions have another intriguing property: When they increase in activity, you tend to feel pretty bad — tired, stymied, frustrated. Think about the last time you grappled with a math problem or pushed yourself to your physical limits. Hard work makes you feel bad in the moment. The Marine Corps has a motto that embodies this principle: “Pain is weakness leaving the body.” That is, the discomfort of exertion means you’re building muscle and discipline. Superagers are like Marines: They excel at pushing past the temporary unpleasantness of intense effort. Studies suggest that the result is a more youthful brain that helps maintain a sharper memory and a greater ability to pay attention.
This means that pleasant puzzles like Sudoku are not enough to provide the benefits of superaging. Neither are the popular diversions of various “brain game” websites. You must expend enough effort that you feel some “yuck.” Do it till it hurts, and then a bit more.
The author points to the desire of Americans to pursue happiness, which leads us to" consistently sidestep the discomfort of mental effort or physical exertion, this restraint can be detrimental to the brain. All brain tissue gets thinner from disuse. If you don’t use it, you lose it."
So shall we all work on becoming Superagers? The author closes the article with this bit of advice, "make a New Year’s resolution to take up a challenging activity. Learn a foreign language. Take an online college course. Master a musical instrument. Work that brain. Make it a year to remember."
Also remember, capes and tights are optional!
Should Home Care Providers Be Permitted to Seek Broad Waivers of Liability from Elderly Clients? (And if so, are there clear standards for a knowing waiver?}
Recently an attorney wrote to me about an elderly client who had been victimized by a home care worker hired through an agency; the allegations included physical abuse, intimidation, identity theft, failure to provide care, theft of personal possessions and false imprisonment. Not too surprisingly, the specific worker was long gone once the harm was discovered by non-resident family members. Significantly, the family also learned that the mother had signed the agency's standard contract withtwo pages of single-spaced type that covered everything from hours to wages, and which included a numbered paragraph purporting to grant a broad waiver of the agency's liability for actions of the individuals sent to the home of the elderly client. Key language provided:
"CLIENT and/or CLIENT's agent/responsible party agrees on behalf of CLIENT, CLIENT's agent/responsible party, beneficiaries, heirs, and/or family/household members to release [agency], owner, officers, directors, agents and employees, office, office directors, office employees, and Caregiver from any and all liability, potential or real, for any injury, claim, damage, or loss, including attorney's fees, incurred in connection with the performance of this agreement and all services, incurred in connection with the performance of this agreement and all services performed by Caregiver for the CLIENT, including but no limited to assisting CLIENT with his/her medications and providing transportation to Client or any member of CLIENT's family/household, except for gross negligence...."
The attorney asked about any state regulatory language that would limit liability waivers or require, at a minimum, bold faced type or large type for such attempted waivers when used with elderly or disabled clients. Those receiving home care may be uniquely vulnerable to unwitnessed abuse, and also less likely to report abuse because of the fear of the "worse" alternative, a nursing home. In the state in question, regulations require certain disclosures to be made in a form "easily read and understood," but the regulations don't specifically address (nor prohibit) waivers of the company's liability. See e.g. PA Code Section 611.57.
What about in your state? Is there relevant regulation? Alternatively, is there a "best" (or at least better) practice in the home care industry when seeking contractual waivers of liability? The issue reminds me of an article written in the mid-1990s by Charlie Sabbatino discussing the one-sided nature of nursing home contracts in the absence of careful regulation protecting patient rights. He wrote:
Broadly worded waivers of liability for personal injury are likely to be unenforceable and void as a matter of public policy in most states. Residents are most commonly asked to consent to absolute waivers for injury caused by other patients or by independent contractors in the facility, or for injury occurring outside of the facility, such as on a field trip. Federal and state nursing home laws have not squarely addressed personal injury waivers. even though the whole thrust of the regulatory framework is expressly intended to set standards for the protection of residents' health, safety, and welfare.
And the subtitle of the article on Nursing Home Contracts is "Undermining Rights the Older Fashioned Way."
January 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 11, 2017
I'm much overdue in writing about a terrific, recent workshop at Arizona State University's Sandra Day O'Connor College of Law on "The Aging Brain." For me it was an ideal gathering of disciplines, including experts in neurology, psychology, health care (including palliative care and self-directed aid-in-dying), the judiciary, and both practitioners and academics in law (not limited to elder law). Even more exciting, that full day workshop (11/18/15) will lead into a public conference, planned for fall 2017.
Key workshop moments included:
- Preview of a potentially ground-breaking study of early-onset Alzheimer's Disease (AD) centered on a family cluster in the country of Columbia with a genetic marker for the disease and a high incidence of onset. By "early onset," we're talking family members in their 40s. The hope is that by studying the bio-markers in this family, that not only early onset but later-in-life onset will be better understood. Eric Reiman, with professional affiliations with Banner Health, Arizona State University and University of Arizona, spoke at the workshop, and, as it turned out, he was also featured on a CBS 60 Minutes program aired a short time later about the family-based study. Here's a link to the CBS transcript and video for the 60 Minutes program on "The Alzheimer's Laboratory."
- Thoughtful discussion of the ethical, legal and social implications of dementia, including the fact that self-directed aid-in-dying is not lawful for individuals with cognitive impairment. Hank Greely from Stanford University Law and Medical Schools, and Professor Betsy Grey for ASU's Sandra Day O'Connor College of Law led discussions on key issues. As biomarkers linked to AD are identified, would "you" want to know the outcome of personal testing? Would knowing you have a genetic link to AD change your life before onset?
- Overview of recent developments in "healthy" brain aging and so-called "anti-aging" treatments or medications, with important questions raised about whether there is respected science behind the latest announcement of "breakthroughs." Cynthia Stonnington from the Mayo Clinic and Gary Marchant from ASU talked about the science (or lack thereof), and Gary raised provocative points about the role of the FDA in drug approvals, tracking histories for so-called off label uses for drugs such as metformin and rapamycin.
I very much appreciate the opportunity to participate in this program, with special thanks to Betsy Grey and federal Judge Roslyn Silver for making this possible. I've also enjoyed serving as occasional guest in Judge Silver's two-semester Law and Science workshop with ASU law students. Thank you! For more on the Aging Brain programming at ASU, see here.
January 11, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Science | Permalink | Comments (0)
Tuesday, January 10, 2017
Kaiser Health News ran a story last week on the failure of CMS to recover significant overpayments from some Medicare Advantage plans. Medicare Failed To Recover Up To $125 Million In Overpayments, Records Show explains
An initial round of audits found that Medicare had potentially overpaid five of the health plans $128 million in 2007 alone, according to confidential government documents released recently in response to a public records request and lawsuit.
But officials never recovered most of that money. Under intense pressure from the health insurance industry, the Centers for Medicare and Medicaid Services quietly backed off their repayment demands and settled the audits in 2012 for just under $3.4 million — shortchanging taxpayers by up to $125 million in possible overcharges just for 2007.
The story reports the overpayments occur for various reasons, including billing errors and from "overcharge[ing] Medicare, often by overstating the severity of medical conditions...." The story reports on CMS audits of some health plans, events that led up to the settlement of the overpayment claims and a May, 2016 GAO report.
In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014). The high court concluded:
Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.
Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case. His firm's Blog further reports on the effects of the final ruling in Oregon:
"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."
January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, January 9, 2017
3L Villanova Law Student Jennifer A. Ward has an interesting analysis of the Third Circuit's decision in Zahner v. Sec'y Pa Dept. of Human Servs., 802 F.3d 497 (3d Cir. 2015), published in a recent issue of the Villanova Law Review. She begins with a summary of the Zahner decision and an outline of her analysis:
[T]he Third Circuit examined whether short-term annuities, a specific instrument used in Medicaid planning, qualified for the DRA's safe harbor provision. If so, assets used to purchase short-term annuities would be sheltered from factoring into individuals' eligibility for Medicaid. Holding that short-term annuities can qualify for protection, the Third Circuit's decision signifies that the DRA did not completely foreclose the “use of short-term annuities in Medicaid planning.”
This Casebrief argues that the Third Circuit's Zahner decision is a win for elder law attorneys and their clients, as it solidifies the viability of the use of short-term annuities in Medicaid planning. Part II examines how individuals take part in Medicaid planning, including a discussion of the DRA and the use of annuities in planning. Part III presents the facts of Zahner and reviews the Third Circuit's analysis. Part IV analyzes the Third Circuit's decision to approve the use of short-term annuities. Part V advises elder law practitioners on the use of short-term annuities going forward. Part VI concludes by discussing the long-term viability of short-term annuities.
After Zahner, elder law practitioners are free to use short-term annuities while guiding their clients through the Medicaid planning process. The Third Circuit will not bar the use of qualified short-term annuities in Medicaid planning, instead leaving any change in policy to Congress. Therefore, until Congress acts, short-term annuities are a viable planning tool in the Third Circuit for the foreseeable future.For people who wish to leave assets to loved ones, Zahner presents good news. Rather than causing people to exhaust their savings on long-term care, Zahner provides individuals greater ability to protect resources through Medicaid planning.
Friday, January 6, 2017
I was reading a recent blog post on the Scientific American that featured a guest blog by Dr. Snyder, the Senior Director of Medical and Scientific Operations, Medical and Scientific Relations for the Alzheimer's Association. The blog, Alzheimer's Falls More Heavily on Women Than on Men, opens with two vignettes of women who early-onset Alzheimer's.
Alzheimer’s dementia disproportionately affects women in a variety of ways. Compared with men, 2.5 times as many women as men provide 24-hour care for an affected relative. Nearly 19 percent of these wives, sisters and daughters have had to quit work to do so. In addition, women make up nearly two-thirds of the more than 5 million Americans living with Alzheimer’s today.
The blog explains that researchers are studying this to see if they can find the answer, but longevity alone isn't likely it. The post also reports on the work of the Alzheimer's Association including a funding initiative for 9 research projects. Some are looking at lifestyle factors including stress and education. The article concludes with a discussion of the role and importance of advocacy