Monday, July 21, 2014
Leslie Frances, Associate Dean for Faculty Research Development at University of Utah Law, has an interesting post on the Health Law Prof Blog about challenges to states that have failed to provided Medicaid coverage for needs of residents in "assisted living," as opposed to "skilled nursing" care settings. Here are two such cases she describes:
First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds. The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase. The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014. The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).” Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished). Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard. Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.
Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs. Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services. The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it. Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014).
My own state of Pennsylvania is one of the states that has, in theory, obtained approval from HHS to use Medicaid in assisted living facilities, but even after several years, funding has not been implemented. Across the state line in New Jersey, low income/asset residents in assisted living are eligible to apply for Medicaid.
Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 16, 2014
From the New York Times on July 16, 2014, this news of a class action lawsuit challenging dramatic cuts in Medicaid funding for home care:
"A federal class action lawsuit filed late Tuesday accuses New York State health officials of denying or slashing Medicaid home care services to chronically ill and disabled people without proper notice, the chance to appeal or even an explanation, protections required by law.
The lawsuit, filed in United States District Court for the Southern District of New York, names three plaintiffs: an impaired 84-year-old woman living alone in Manhattan, a frail 18-year-old Brooklyn man with severe congenital disabilities, and a 65-year-old Manhattan man with diabetes and a schizoaffective disorder. But it was brought by the New York Legal Assistance Group on behalf of tens of thousands of disabled Medicaid beneficiaries who need home health care or help with daily tasks like bathing and eating."
For the full New York Times article, see Nina Bernstein on "Medicaid Home Care Cuts are Unjust, Lawsuit Says."
From McKnight's comes this interesting report on new statistical information on Alzheimer's:
"The odds of developing Alzheimer's disease fell sharply among seniors in the United States over the last 30 years, according to research presented Tuesday at the Alzheimer's Association International Conference in Copenhagen. The finding casts a new light on prior estimates that the number of people needing long-term care will triple by 2050, largely due to Alzheimer's."
For a more complete report on the Conference, see McKnight's piece "Chance of a senior developing Alzheimer's has dropped 44% over the last three decades, large U.S. study shows."
Monday, July 14, 2014
It's been nearly 3 1/2 decades since China's government started limiting most urban families to one child. The family planning policy successfully slowed the nation's population growth, but it has had some unintended consequences. One is that some parents lose their only children to illness or accidents and end up with no one to care for them in their old age. Now, these parents have gotten together to demand their rights. A group of parents meets at a Beijing restaurant to talk and console each other. Many of them say they have a hard time relating to people who haven't experienced the heartbreak they have. They ask to be identified by their online names, because they don't want to get in trouble for criticizing government policy. One of the diners identifies herself as Xiaonan's mom. Xiaonan died of illness eight years ago, when he was 25 years old. She says his death made her feel like a failure and her life lost its meaning. More On China's One-Child Policy A man and child walk in Beijing's Tiananmen Square. China's government recently announced an easing of the country's one-child policy. While the move appears to be broadly supported, many urban Chinese parents say it would be hard to afford a second child. Feng Jianmei and her husband could not pay $6,000 in fines for violating China's one-child policy. In June, when she was seven months pregnant, local officials abducted her and forced her to have an abortion, her family says. The case has provoked widespread outrage. "I gave everything to him, so when he left, he took everything I had," she says. "Now I'm just surviving. After he left, I started drinking. If I didn't, I wouldn't be able to sleep at all." Population experts estimate that over 1 million Chinese families have lost their only children. They say that number could exceed 10 million by midcentury.
Read more at NPR News.
Wednesday, July 9, 2014
One of the great components of the network of "Law Prof Blogs" is Chinese Law Prof Blog, edited by Professor Donald Clarke at George Washington Law. Professor Clarke posted a recent entry entitled "Controversy Over Elder Law in China," pointing to draft legislation related to "support" for the aged. While the links in this particular posting are -- of course -- to Chinese language sources, I suspect this might be another aspect of the debate about filial support laws that I've been following through Australian media sources. Here is an English language report on a dramatic Chinese case involving what I would describe as a filial support law matter. Hat tip to my Penn State colleague Professor Beth Farmer for bringing the interesting and wide-ranging Chinese Law Prof Blog to my attention.
Perhaps we'll hear more about this at the 2014 International Elder Law and Policy Conference in Chicago at John Marshall Law this week. Stay tuned.
We've previously posted advance information about the International Elder Law and Policy Conference that will be hosted this week -- July 10-11 -- in Chicago. The organizers are John Marshall Law School; Roosevelt University, College of of Arts and Sciences; and East China University of Political Science and Law.
The conference will have an interesting format, combining presentations from a range of professionals with experience working with or for older persons, and working sessions to draft a model "International Bill of Rights for Elderly Persons, in parallel with U.N. sessions on ageing.
As an example of the breadth of participation and coverage at this conference, my session on Thursday focuses on "Health Care, Caregving for Older Persons and Legal Decision Making," and will be co-moderated with Professor Walter Kendall at John Marshall. The panel includes the following topics and speakers:
- "Dementia and Planning Death: The Challenge for Advance Directives," by Meredith Blake at University of Western Austalia Law School
- "Social Change and Its Apparent Effect on Senior Care Services: A Comparative Study of Post-Soviet Union Russia and the U.S.," by Amy Delaney, partner at Delaney, Delany & Voorn in Illinois, and Alina Risser, a lawyer from Russia, currently studying law at John Marshall;
- "Rights are Not Good for Older Persons in Long-Term Care Settings? Experience from the European Union," by Nena Georgantzi, Legal Officer for AGE Platform Europe;
- "Bridging the Caregiver Gap: Does Technology Provde an Ethically and Legally Viable Answer?," by Donna Harkness, University of Memphis School of Law;
- "The Insufficiency of Spiritual Support of Urban Elders in China and Suggestions on Legislation," by Jun Li, East China University of Political Science and Law.
We'll report more after the events on Thursday and Friday!
July 9, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Sunday, July 6, 2014
I'm back from a fun and productive time in Northern Ireland, and feeling invigorated. In addition to enjoying beautiful weather, great craic, and time spent with friends exploring the north Antrim coast via foot, boat and a friend's snazzy red convertible, I participated in working meetings in Belfast conducted by Claire Keatinge, the Commissioner of Older People for Northern Ireland (COPNI). The topics were prospective laws and guidance regarding safeguarding and social care policies for older adults, connected to commissioned research by two academic teams headed by members of Queens University Belfast.
I've been thinking about one particular theme that emerged for me from the working sessions: does a government's commitment to assess need for services obligate the government to meet those needs? In a perfect world, of course that would be the goal, but this is hardly a perfect world. Claire Keatinge (pictured in the center, with members of the social care research and advisory teams) raised the point that too often governments may be driven by "what services are available" as the definition of need. In other words, there is a tendency to recognize an individual's need only if the government actually has a program or package of services available. Thus, for example, even if the individual needs one-on-one monitoring and assistance to avoid serious risk of injury from falling, the tendency of social care programs would be to indicate 4 hours per day of "need" if that was the limit of government funding. Such "backwards" assessment leaves the person vulnerable, not just from the limitations on public funding, but from the inaccurate record of need.
We spent time talking about whether legislation or policy guidance should address both assessment of need and programs of service. The COPNI discussion helped me to realize that accurate assessment and recording of all need is critical to coordination of family, volunteers, nonprofit or church-based assistance, and government funding to meet the true needs of disabled or frail individuals. However, assessment of need still carries implications for government funding.
The implications of assessment are addressed in an important recent decision of the European Court of Human Rights in McDonald v. United Kingdom (Application No. 4241/12). In the case, a British woman born in 1943 sustained a disabling stroke in 1999, followed by a badly broken hip from a later fall. Ms. McDonald, who was not incontinent, applied for assistance at night with toileting; eventually she was assessed as being in "substantial need" of nighttime personal assistance and provided a funding package that permitted her to have nighttime assistance. However, later the government office reduced the funding, appearing to conclude the cost was excessive and "incontinence pads" for nighttime use was sufficient, reducing the number of hours of service.
Ms. McDonald challenged the reduction of services under Article 8 of the European Convention on Human Rights, arguing the decision violated her right to respect for her private life, and that the local authority was "unreasonably and unlawfully failing to meet her assessed and eligible needs." Several months later she was reassessed by the local authority, which then determined that Ms. McDonald's needs for "safety" at night could be adequately met by the use of incontinence pads and sheets. Ms. McDonald framed an emotionally persuasive case that the ability to toilet in a dignified manner was a core human right.
Ms. McDonald's appeal was addressed by high courts in England, before reaching the European Court of Human Rights, which issued a decision in May 2014. Ultimately the court concluded that during the period of time between the initial assessment of "substantial" need and the later reassessment, a period of about a year during which Ms. McDonald was provided with limited nighttime assistance, was a violation of Article 8. She was therefore deemed entitled to a relatively nominal sum of damages (explained in a detailed portion of the opinion). However, once the local authority's "reassessment of need" occurred, the Court determined it was without the power to find a human rights violation under Article 8. This outcome strikes me as demonstrating the potential for governments to be driven by finances to avoid making independent, candid assessments of need. Ms. McDonald's physical conditions and nighttime needs had not changed; only the "assessed needs" had changed.
For more on the implications of the McDonald ruling, viewed by many as a "win" because it recognized a personal right protected under Article 8, see English Barrister Steve Broach's thoughtful commentary, "Context is Everything: Why McDonald v. UK is a Stepping Stone on the Road to a Dignified Future for Disabled People."
Tuesday, June 24, 2014
The U.S. Department of Health and Human Services’ Administration for Community Living (ACL) is proud to announce the release of a new online learning tool: Building Respect for LGBT Older Adults. The tool is designed to increase awareness of the issues faced by lesbian, gay, bisexual, and transgender (LGBT) individuals living in long term care (LTC) facilities.
After completion of the online training, program participants will be prepared to:
- Increase visibility of the issues facing LGBT individuals in LTC facilities.
- Provide easy access to information on serving LGBT individuals in LTC facilities.
- Encourage LTC facilities to provide opportunities for staff to take the online training.
- Change the way individuals and facilities approach older LGBT adults.
The Building Respect for LGBT Older Adults tool was developed in collaboration with the HHS Office of Public Affairs, the Centers for Medicare & Medicaid Services, and the ACL-funded National LGBT Resource Center, with input from aging and LGBT advocates.Read more.
Additional LGBT Resources for the Aging Services Network
Since 2010, the ACL Administration on Aging has funded Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE) to develop and operate the National Resource Center on LGBT Aging (NRC), the country's first and only technical assistance resource center aimed at improving the quality of services and supports offered to LGBT older adults. This resources clearinghouse website was recently revamped and includes great local and national resources, as well as a new database of all the organizations that have received one of NRC’s trainings. Also, the NRC’s most popular guide, A Practical Guide to Creating Welcome Agencies is now available in Spanish titled Servicios Inclusivos Para Personas Mayores LGBT. Request a copy today!
Also, read the Presidential Proclamation -- Lesbian, Gay, Bisexual, and Transgender Pride Month, 2014.
Friday, June 20, 2014
I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues.
Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss practical concerns about elder abuse at the local level. Bob and I conducted two sessions on Powers of Attorney.
This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force. Judge Murphy, right, is also a part of this effort. A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse. Guided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.
Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI). Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast. The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors. Last winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals. These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals. I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year.
Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks. I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me.
June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 18, 2014
Last week's news of a Chapter 11 Bankruptcy proceeding in the Texas-based senior living company Sears Methodist Retirement Systems, Inc. (SMRS) has once again generated questions about "entrance fees" paid by residents at the outset of their move to a Continuing Care Retirement Community (CCRC). CCRCs typically involve a tiered system of payments, often including a substantial (very substantial) upfront fee, plus monthly "service" fees. The upfront fee will carry a label, such as "admission fee" or "entrance fee" or even entrance "deposit," depending on whether and how state regulations require or permit certain labels to be used.
As a suggestion of the significance of the dollars, a resident's key upfront fee at a CCRC operated by SMRS reportedly ranged from $115,000 to $208,000. And it can be much higher with other companies. So, let's move away from the SMRS case for this "blog" outline of potential issues with upfront resident fees.
Even without talking about bankruptcy court, for residents of CCRCs there can be a basic level of confusion about upfront fees. In some instances, the CCRC marketing materials will indicate the upfront fee is "refundable," in whole or in part, in the event the resident moves out of the community or passes away. Thus, residents may assume the fees are somehow placed in a protected account or escrow account. In fact, even if the upfront fee is not "refundable," when there is a promise of "life time care," residents may assume upfront fees are somehow set aside to pay for such care. How the facility is marketed may increase the opportunity for resident confusion. Residents are looking for reassurances about the costs of future care and how upfront fees could impact their bottom line. That is often why they are looking at CCRCs to begin with. "Refundable fees" or "life care plans" can be important marketing tools for CCRCs. But discussions in the sales office of a CCRC may not mirror the "contract" terms.
One of the most important aspects of CCRCs is the "contract" between the CCRC and the resident. First, smaller "pre move-in" deposits may be paid to "hold" a unit, and this deposit may be expressly subject to an "escrow" obligation. But, larger upfront fees -- paid as part of the residency right -- are typically not escrowed. It is important not to confuse the "escrow" treatment of these fees. Of course, the "hold" fee is not usually the problem. It is the larger upfront fees --such as the $100k+ fees at SMRS -- that can become the focus of questions, especially if a bankruptcy proceeding is initiated.
The resident's contract requires very careful reading, and it will usually explain whether and how a CCRC company will make any refund of large upfront admission fees. In my experience of reading CCRC contracts, CCRCs rarely "guarantee" or "secure" (as opposed to promise) a refund, nor do they promise to escrow such upfront fees for the entire time the payer resides at the CCRC. In some states there is a "reserve" requirement (by contract or state law) for large upfront fees whereby the CCRC has a phased right to release or use the fees for its operation costs. Thus, the contract terms are the starting place for what will happen with upfront fees.
Why doesn't state regulation mandate escrow of large upfront fees? States have been reluctant to give-in to pressure from some resident groups seeking greater mandatory "protection" of their upfront fees. There's often a "free enterprise, let the market control" element to one side of regulatory debates. On the other side, there is the question of whether life savings of the older adult are proper targets for free enterprise theories. Professor Michael Floyd, for example, has asked, "Should Government Regulate the Financial Management of Continuing Care Retirement Communities?"
My research has helped me realize how upfront fees are a key financial "pool" for the CCRC, especially in the early years of operation where the developer is looking to pay off construction costs and loans. CCRCs want -- and often need -- to use those funds for current operations. and debt service. Thus, they don't want to have those fees encumbered by guarantees to residents. They take the position they cannot "afford" to have that pool of money sitting idle in a bank account, earning minimal interest. This is not to say the large entrance fees will be "misspent," but rather, the CCRC owners may wish to preserve flexibility about how and when to spend the upfront fees.
The treatment of "upfront fees" paid by residents of CCRCs also implicates questions about application of accounting and actuarial rules and principles. That important topic is worthy of a whole "law review article" -- and frankly it is a topic I've been working on for months.
In additional to looking for actuarial soundness, analysts who examine CCRCs as a matter of academic interest or practical concern have looked at whether CCRC companies and lenders may have a "fiduciary duty" to older adults/residents, a duty that is independent of any contract law obligations. Analysts further question whether a particular CCRC's marketing or financial practices violate consumer protection or elder protection laws.
There can also be confusion about what happens during a Chapter 11 process. First, during the Chapter 11 Bankruptcy process, a facility may be able to honor pre-bankruptcy petition "refund" requests or requests for refund of fees for a resident who does not move into the facility. Second, to permit continued operation as part of the reorganization plan, a facility will typically be permitted by the Court to accept new residents during the Chapter 11 proceeding and those specific new residents will have their upfront fees placed into a special escrow account, an account that cannot be used to pay the pre-petition debts of the company.
But what about the upfront fees already paid pre-petition by residents who also moved in before the bankruptcy petition? Usually those upfront fees are not escrowed during the bankruptcy process. Indeed, other "secured" creditors could object to refunds of "unsecured" fees. The Bankruptcy Court will usually issue an order -- as it did in SRMS's bankruptcy court case in Texas last week -- specifying how current residents' upfront fees will be treated now and in the future. A bit complicated, right? (And if I'm missing something please feel free to comment. I'm always interested in additional viewpoints on CCRCs. Again, the specific contract and any state laws or regulations governing for handling of fees will be important.)
Of course, this history is one reason some of us have been suggesting for years that prospective residents should have an experienced lawyer or financial consultant help them understand their contracts and evaluate risks before signing and again in the event of any bankruptcy court proceeding. "Get thee to a competent advisor." See also University of New Mexico Law Professor Nathalie Martin's articles on life-care planning risks and bankruptcy law.
As I mentioned briefly in writing last week about the SMRS Chapter 11 proceeding, CCRC operators have learned -- especially after the post-2008 financial crisis -- that the ability of a CCRC to have a viable "second chance" at success in attracting future residents will often depend on the treatment of existing residents. Thus, one key question in any insolvency will be whether the company either (a) finds a new "owner" during the Chapter 11 process or (2) is able to reorganize the other debts, thereby making it possible for the CCRC company to "honor" the resident refund obligations after emerging from the Chapter 11 process.
During the last five years we have seen one "big" default on residents' upfront. refundable entrance fees during the bankruptcy of Covenant at South Hills, a CCRC near Pittsburgh. A new, strong operator eventually did take over the CCRC, and operations continued. However, the new operator did not "assume" an obligation to refund approximately $26 million in upfront fees paid pre-petition by residents to the old owner. In contrast, Chapter 11 proceedings for some other CCRCs have had "gentler" results for residents, with new partners or new financial terms emerging from the proceedings, thereby making refunds possible as new residents take over the departed residents' units.
For more on how CCRC companies view "use" of upfront fees, here's a link to a short and clear discussion prepared by DLA Piper law firm, which, by the way, is the law firm representing the Debtor SMRS in the Texas Chapter 11 proceeding.
June 18, 2014 in Consumer Information, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Monday, June 16, 2014
Recently Artis Senior Living CEO Don Feltman joined CEOs from 10 other high profile corporate employers, such as Coca-Cola, Tyson Foods, and Loews Hotels & Resorts, to urge Congress to fix the "broken" immigration system, to permit expanded lawful avenues for foreign-born workers in the U.S. In their June 10 letter, they write in part:
All our companies rely on legal immigrants working alongside Americans to keep our businesses growing and contributing to the economy. This is a reality driven by demographics. In 1950, more than half of America’s workers were high school dropouts willing to do physically demanding, low-skilled work. Today, the figure is less than 5 percent. But our businesses still need less-skilled workers – and the need will only grow in years ahead. Baby boomers are retiring: 10,000 older workers are leaving the workforce every day. And after a long downturn, most of our operations are expanding and looking to hire workers.
The problem: there is virtually no legal way for less-skilled foreigners without family in the U.S. to enter the country and work in year-round jobs – effectively no temporary or permanent visas available for non-seasonal workers. Congress has an obligation to fill this gap – we need a visa program for less-skilled foreign workers seeking year-round jobs. Employers should have to try to hire Americans first. But if they can’t find enough U.S. workers, they should be able to hire foreign workers quickly, easily and legally.
Sunday, June 15, 2014
According to news reports, on June 10 Sears Methodist Retirement System, Inc. filed a voluntary petition in bankruptcy court in Texas, seeking relief under Chapter 11. Apparently the private company, organized as a nonprofit that currently operates eleven senior living properties in Texas, including Contining Care Retirement Communities (CCRCs), Assisted Living facilities and Veterans homes, is seeking to reorganize some $160 million in debts. The multi-company operation provides housing and services to some 1,500 residents. A detailed early report by Peg Brickley at Daily Bankruptcy Reports explains the initial relief sought:
The Texas nonprofit organization is asking the U.S. Bankruptcy Court in Dallas to authorize it to quickly borrow $600,000 from existing bondholders, warning that it would be forced to cease operations without access to the funds.
"Such an abrupt cessation of the...businesses would have devastating effects on the residents at the senior living facilities such debtors own and/or operate, including leaving many residents without food, medical supplies, and the health and support services that they require," Chief Restructuring Officer Paul B. Rundell said in court papers.
"In fact, many residents may be forced to immediately relocate, causing extreme hardship and putting both their lives and health at risk," added Mr. Rundell, of Alvarez & Marsal's Healthcare Industry Group.
Sears Methodist blamed the declining property market for some of its troubles. Older people are having trouble selling their homes and liquidating their stock portfolios to raise the money for the upfront payment to get into the senior-living communities, according to court papers.
I would expect some of the SMRS properties to be financially stronger than others, and thus could be spun off or taken over by other senior living operators, perhaps those with expertise in the specific type of property. When CCRCs are involved, residents have often paid very large "entrance" fees and must continue to pay substantial monthly service fees. Even when their entrance fees are described as "refundable," CCRC residents are usually treated under bankruptcy law as "unsecured" creditors and thus become especially nervous during the proceedings.
Over the last several years, I've seen growing recognition that reassurance of existing residents, if possible, is critical to the continuation of the CCRC as a viable operation once it emerges from bankuptcy. Fortunately, despite continuing ups and downs (downs and ups?) in senior living markets since the 2008 financial crisis, the market has seen fairly strong players emerging. There is also better appreciation for appropriate -- and inappropriate -- levels of risk and the importance of maintaining resident confidence over the long-term.
Friday, June 13, 2014
Dedham, Massachusetts, established as a town in 1636 just to the west and south of Boston, has a long history, including an interesting early debate on governance, as suggested by one protest. According to historian and University of Chicago Law School Professor Geoffrey R. Stone, a group of local Dedham citizens erected a "liberty pole" in protest of the evils of the Federalist government, with a placard reading:
"No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long-Live the Vice President."
Wishing "happy retirement" to the then-president, John Adams, was not a message of good will or appreciation.
In light of this history, a modern debate in Dedham caught my eye, involving opposition to construction of a senior living community in a residential neighborhood of that town. As reported in a local Dedham news source:
"'Can you imagine waking up in the morning … there’s a house next door with 72 people in it with a very large staff and a whole lot of friends visiting?' Paul Reynolds said at a May 13 Dedham Zoning Board of Appeals meeting. 'If it could happen in this neighborhood where we can change the rules and change the definition of what single family is, where else could that happen?'
Artis Senior Living officials applied a month ago for a special permit that would allow the company to build an Alzheimer's and dementia care facility at 255 and 303 West Street—two residential properties on 7.71 acres that include conservation land. The ZBA decided to continue the hearing after several precinct one residents objected.
The Virginia-based company had initially proposed to build a 37,000 square foot, single story facility and about 21 feet tall. However, representatives presented a slightly different footprint last week after the board and residents raised concerns regarding the size of the property at an April 22 meeting."
In deference to the opposition, the developers changed the design, from a one story complex to a two story building centered on the 7 acre plot, thus allowing a greater buffer zone of more than 300 feet (that's a football field, right?) between the buildings and any of the closest neighbors.
The protests apparently continue, however, thus demonstrating that in additon to opposing prisons and half-way houses for drug treatment, Not-In-My-Back-Yard" or NIMBY movements can target seniors. John Adams would appreciate the history, perhaps.
Friday, June 6, 2014
Is Community Spouse's IRA Countable in Determining Medicaid Eligibility? Arkansas Supreme Court Says "Yes"
In Arkansas Department of Human Services v. Pierce, the Arkansas Supreme Court ruled on May 29 that individual retirement accounts owned by a wife were "countable" in determining her husband's eligibility for Medicaid as a resident in a nursing home in Arkansas. In so ruling, and treating the issue as a matter of first impression in Arkansas, the Court rejected the analysis of a Wisconsin court, and aligned itself with the analysis of a New Jersey Court in determining that the state's decision -- to include IRAs owned by either spouse in the "snapshot" of resources subject to spend-down -- did not violate federal law.
In this case, the community spouse may be significantly affected, depending on her own lifespan. Hoping that her husband of 46 years would improve and not need to stay in a nursing home, it appears she had already paid "privately" for nursing home care for 18 months. With the ruling, if her husband continues to need nursing care, she will be allowed to keep $109,560, and thereby will likely spend much of her IRA savings (totaling about $350,000) towards his care.
This fact pattern arguably explains one of the reasons why Elder Law professionals have turned to Medicaid-qualified annuities and other permitted planning tools, to convert countable "resources" into uncountable "income," thereby better assisting the community spouse in financing his or her own final years, particularly if the community spouse hopes to stay at home as long as possible. Will community spouses get timely, qualified assistance with such planning?
Via the Toronto Star:
Navigating Ontario’s long-term care system takes the mental acuity of a chess player, the tenacity of a sumo wrestler and the resourcefulness of a backcountry guide. It also helps to have a working knowledge of the law, medicine and pharmacology. Most seniors and their caregivers have none of these attributes. They stumble along, get bad advice, spend too much money and fall into traps that no one told them about.
The Advocacy Centre for the Elderly (ACE), a legal aid clinic for seniors, does its best to steer people through the maze but it can barely keep pace with the number of calls coming in. It welcomes opportunities to speak to groups of older Canadians before they reach the crisis point.
These information sessions are usually small and seldom advertised. But this week, Canadian Pensioners Concerned, a voluntary organization of socially conscious seniors, opened up its meeting to outsiders. The topic was “The Law of Admission to Long-term Care — What You Need to Know.” The speaker was Jane Meadus, a staff lawyer at ACE who knows the system, knows the pitfalls and knows how innocently trusting most Ontarians are.
She began with a warning: public officials — especially hospital discharge planners — don’t always tell the truth. Their motive is to get so-called “bed blockers” out the door. They push people into costly and ill-informed decisions. They invent rules and set deadlines that have no basis in law. They take advantage of families in crisis. “I’ve seen (hospital) vice-presidents come to rooms to yell at people,” Meadus said. “The pressure that is put on families is really, really horrendous.”
Thursday, June 5, 2014
Does a resident have a private right of action for violation of key provisions of the federal Nursing Home Reform Act?
For example, federal Medicare/Medicaid Law specifies residents have certain "Transfer and Discharge Rights." A certified nursing facility must permit each resident to "remain in the facility" and must "not transfer or discharge the resident" except for certain specified reasons, usually requiring 30 days advance notice. But what happens if a facility ignores the limitations on acceptable grounds for transfer or discharge, including the 30 day notice requirement?
In its decision on May 12, 2014 in Schwerdtfeger v. Alden Long Grove Rehabilitation and Health Care Center, the federal district court in the Northern District of Illinois ruled that a discharge improper under federal law does not trigger a private statutory remedy. As described in the clearly written decision, an abrupt transfer of the resident from the nursing home into a hospital followed the resident's "verbal dispute with a nurse" and another resident. While federal law permits transfers where there someone's safety or health is endangered, it does not appear from the decision that the nursing home claimed the verbal dispute created such a danger.
Nonetheless, the court dismissed the resident's federal claim, concluding that the statutory language regarding discharge and transfer rights in Medicare and Medicaid law "does not manifest a 'clear and unambiguous' Congressional intention to create private rights in favor of individual nursing facility residents.... The NHRA [Nursing Home Reform Act] provides an administrative process in the state courts rather than a private remedy in federal court."
In so ruling, the federal district court declined to follow the analysis of the Third Circuit in Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 3d 520 (3d Cir. 2008), which as a "matter of first impression" ruled that the NHRA was sufficiently "rights creating" that it could trigger a cause of action regarding quality of care under Section 1983.
My question, reflecting my teaching interests no doubt, is whether the nursing home's discharge was a breach of contract? Most nursing home contracts I've reviewed either directly or indirectly "adopt" the protections of the NHRA as specific rights of their residents. (Indeed, I would be leery of any nursing home that did not do that.) So, even if not a violation of federal law, wouldn't such a discharge breach the contract? I suspect there is probably a court decision or law review article on this topic -- perhaps our readers have a citation?
Of course, in seeking a right to sue directly under the NHRA, the resident was probably also seeking a right to claim attorneys' fees under the civil rights law; breach of contract claims, even if successful, may not make a claimant "whole" because of the likelihood of small consequential damages and no contractual right to seek attorneys' fees. It is not clear from the Schwerdtfeger decision whether a breach of contract claim was alleged, although the federal court did "decline" to exercise supplemental jurisdiction over the plaintiff's "state law claims."
Tuesday, June 3, 2014
Do you remember "separate" assisted living and nursing home operations with the names of Kindred, Sunrise, Brookdale, Holiday Retirement and Atria? Perhaps you haven't noticed, but Ventas has either acquired or taken significant ownership positions in all of these operations, as Ventas seeks to offset lower rates paid by Medicaid/Medicare with higher income from "private pay" operations. Here's Ventas' news release on its most recent acquisitions, and here's a McKnight News piece on the impact. While I don't teach M & A courses, for those of us interested in financing issues for long-term care, I have to think that it is a good idea to keep an eye on what is happening with consolidation of senior living providers.
Thursday, May 29, 2014
Law & Society Association's Annual Meeting is always a feast -- with hundreds of presentations and papers, often with cross-discipline themes and presenters. This year's four day program starts today in Minneapolis. On tap are three elder law-themed sessions hosted by Aging, Law & Society. The session on "Rethinking Elder Law's Rules & Norms" will be chaired by Nina Kohn, Syracuse University.
Scheduled paper presentations include:
- Adult Protective Services and Therapeutic Jurisprudence, by Michael Schindler, Bar-Ilan University;
- Age, Gender and Lifetime Discrmination against Working Women, by Susan Bisom-Rapp, Thomas Jefferson School of Law and Malcolm Sargeant, Middlesex University Business School;
- Effective Affective Forecasting in Older Adult Caregiving, by Eve Brank and Lindsey Wylie, University of Nebraska-Lincoln;
- Sexuality & Incapacity, by Alexander Boni-Saenz, Chicago-Kent College of Law;
- Beyond the Law: Legal Consciousness in Older Age Care Contexts, by Sue Westwood, Keele University
Nancy Knauer of Temple Law School is chairing the session on "Accessing and Experiencing Jusice in Older Age." Presentations include:
- From Vienna to Madrid and Beyond, by Israel Doron, University of Haifa;
- Lessons from Detroit: Retiree Benefits in the Real World, by Susan Cancelosi, Wayne State University Law School;
- Older Persons Use of the European Court of Human Rights, by Benny Spanier, Haifa University;
- Crossing Borders and Barriers: Assessing Older Adults' Access to Legal Advice in the Search for Effective Justice, by Katherine Pearson, Penn State University Dickinson School of Law, Joseph Duffy, Queens University Belfast, and Subhajit Basu, University of Leeds
A workshop on "Ethics of Care and Support in Law and Aging," to be chared by Sue Westwood, Keele University, includes:
- Aging with a Plan: What You Should Consider in Middle Age to Plan for Caregiving and Your Own Old Age, by Sharona Hoffman, Case Western Reserve University;
- An Ethic of Care Critique of the UK Care Bill/Act, by Sarah Webber, University of Bristol;
- Both Property and Pauper: Slaver, Old Age, and the Inverted Logic of Capitalist Exchange, by Alix Lerner, Princeton University;
- Responding to Financial Vulnerability: Advances in Gerotchnology as an Alternative to the Substitute Decision Making Model, by Margaret Hall, Thompson Rivers University and Margaret Easton, Simon Fraser University
An international cast of characters, yes? More soon, with details from the front.
Wednesday, May 28, 2014
Led by Momotazur Rahman, Department of Health Services Policy and Practice at Brown University, researchers at Brown and Harvard have analyzed placements in nursing homes for Medicare-only and "dual-eligible" Medicare/Medicaid individuals. In their May 2014 study published (and linked here) in Medical Research and Review, they conclude that the low-income patients are more likely to be sent to lower quality (as measured by staffing radios) nursing homes. Their abstract outlines their call for reform for referral processes:
"Medicare and Medicaid dual-eligible beneficiaries use more medical care and experience worse health outcomes than Medicare-only beneficiaries. This article points to a possible inefficiency in the skilled nursing facility (SNF) admission process, specifically that patients and SNFs are partially matched based on dual-eligibility status, and investigates its influence on patients’ SNF length of stay. Using a set of fee-for-service beneficiaries newly admitted for Medicare-paid SNF care, we document two findings: (1) compared with Medicare-only patients, dual-eligibles are more likely to be discharged to SNFs with low nurse-to-patient ratios and (2) dual-eligibles are more likely to become long-stay nursing home residents than Medicare-only beneficiaries if treated in SNFs with low nurse-to-patient ratios. We conclude that changes in the current SNF care referral process have the potential to reduce excess SNF utilization by dual-eligible beneficiaries and could help reduce spending by both Medicare and Medicaid."
One would hope that a corollary to reforming referral processes to "save money" would be improvements in the quality of life and care for dual-eligibles. Additional analysis of the study is available at McKnights News.