Sunday, June 15, 2014

Sears Methodist Retirement Files for Chapter 11 Reorganization in Texas

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.

June 15, 2014 in Health Care/Long Term Care, Housing, Property Management, Retirement | Permalink | Comments (1) | TrackBack (0)

Friday, June 13, 2014

When Senior Living Facilities Face NIMBY Complaints...

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.

June 13, 2014 in Cognitive Impairment, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

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? 

June 6, 2014 in Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Canada: Jane Meadus on the rights of patients at the time of hospital discharge

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.”

Read about Jane's advice to families here.

June 6, 2014 in Health Care/Long Term Care | Permalink | TrackBack (0)

Thursday, June 5, 2014

Is There A Private Right of Action Under the Nursing Home Reform Act?

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." 

June 5, 2014 in Consumer Information, Federal Cases, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 3, 2014

Mergers in Senior Living Market Continue...

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.   

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

Thursday, May 29, 2014

Law & Society Annual Meeting on "Rethinking Elder Law's Rules & Norms" and More

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.

May 29, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

Dual-Eligibles Face Longer Stays & Higher Patient-to-Staff Ratios for Nursing Home Care

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. 

May 28, 2014 in Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Monday, May 26, 2014

Tobor to the Rescue? Home Medication Dispensers

When I was a child, there was a movie -- or maybe a tv show -- with a friendly robot named Tobor.  Tobor soon became an imaginary friend for the neighborhood children, and conveniently, someone we could blame when we forgot to close a door or knocked something over.  "Tobor did it!"

Fast forward many years and last week, during a meeting at my Area Agency on Aging, I learned the AAA had entered into a contract with a company that makes home medication dispensers to provide the devices at a modest cost to clients in the county.  "Tobor for the Boomer Generation!"

The device, about the size of a blender or coffee machine, can be pre-loaded with a large number of doses of different kinds of medications with different dispensing schedules, and with recorded messages such as "Drink with water."  The machine signals the client to take the revealed dose, and continues the signal until the medication is removed.  It can also be programmed to contact a family member about a missed dose.  Of course, there are limits to the utility of any automated device, as the client must still have the capacity to follow the directions and not simply discard the dose. 

It will be interesting to see, over time, whether (and which kind of ) Tobors are effective innovations with long-range satisfaction and utility.  I do seem to have a lot of ignored contraptions on my own kitchen counter. 

May 26, 2014 in Consumer Information, Current Affairs, Health Care/Long Term Care, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Saturday, May 24, 2014

The Ultimate Compendium of Health Stats in the US

Centers for Disease Control

Health, United States, 2013

Nuff said!

 

May 24, 2014 in Health Care/Long Term Care, Statistics | Permalink | TrackBack (0)

Friday, May 23, 2014

International Elder Law and Policy Conference July 10-11 in Chicago

John Marshall Law School and Roosevelt University, both in Chicago, and East China University of Political Science and Law in Shanghai, are jointly sponsoring an International Elder Law and Policy Conference in Chicago on July 10-11.

Keynote speakers include Professor Israel Doron of the University of Haifa in Israel and Dr. Ellinoir Flynn and Professor Gerard Quinn, both from National Unviersity of Ireland, Galway School of Law.

Scheduled panel topics include:

  • Dignity and Rights of the Elderly
  • Elimination of Age Discrimination
  • Caregivers and Surrogate Decision Makers
  • Social Security, Pensions and Other Retirement Financing Approaches
  • Prevention of Elder Abuse
  • Access to Justice

Here's the link to the Registration website.

  •    

May 23, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Programs/CLEs, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2014

An "Education Connection" for Senior Living

As readers may have noticed, I've been a long-time "student" of Continuing Care Retirement Communities (CCRCs), drawn to the industry because of its vibrancy and dynamic approach to senior living.  Along the way, I've come to know the many strengths -- and occasional weaknesses -- of individual operations, and the importance of resident engagement to long-range success.  One of my resident contacts shared with me a new PBS NewsHour spotlight on university-connected CCRCs, with a prime focus on Oak Hammock, a community developed under the auspices of the University of Florida.  Universities can offer a unique draw for alums and other college grads, including retired faculty, who value continued educational opportunities.

Here's the link to "Why More Seniors Are Going Back to College -- to Retire."

Although short (about 8 minutes), I find the piece to be balanced, especially in that it hints at the financing terms often needed to make such communities attractive and therefore viable. Some of the people interviewed explain the need for sophisticated mangement to counsel university-based programs, as development of CCRCs can be quite different than simply building a senior's version of  "dorms." My own university stumbled a bit at the starting gate in its early efforts to get a community fully occupied, with the 2008 recession added to the challenges.

Thanks, Karen, for sending us the link!    

May 16, 2014 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Analyzing State Trust Law and Federal Welfare Programs

Maryland Elder Law and Disability Law specialist Ron Landsman provides a thoughtful analysis of use of trusts, especially "special needs trusts," to assist families in effective managment of assets.  His most recent article, "When Worlds Collides: State Trust Law and Federal Welfare Programs," appears in the Spring 2014 issue of the National Academy of Elder Law Attorneys (NAELA) Journal.   Minus the footnotes, his article begins:

"'Special needs trusts,' which enable people with assets to qualify for Supplemental Security Income (SSI) and Medicaid, are the intersection of two different worlds: poverty programs and the tools of wealth management.   Introducing trusts into the world of public benefits has resulted in deep confusion for public benefit administrators. . . . The confusion arising from the merger of trust law with public benefits is sharply drawn in the agencies' [Social Security Administration (SSA) and Centers for Medicare and Medicaid Services (CMS)]  attempts to define what it means for a trust to be for the sole benefit of the public benefits recipient. Public benefits administrators have focused on the distributions a trustee makes rather than the fiduciary standards that guide the trustee.  The agencies have imposed detailed distribution rules that range from the picayune to the counterproductive and without regard, and sometimes contrary, to the best interests of the disabled beneficiary."

Drawing upon his experience in drafting trusts for disabled persons, Ron takes on the challenge of explaining how and where he sees the agencies' focus on "distribution" as misguided.  He contends, for example:

"The [better] task for CMS and SSA [would be] to use their authority to develop standards and guidelines that utilize, rather than thwart, competent, responsible, properly trained trustees as their partners in making special needs trusts an effective tool in serving the needs of people with disabilities.  If this were done properly, capable trustees would be the allies of the federal and state agencies in the efficient use of limited private resources.  Beneficiaries would live better, more rewarding lives to the extent that resources can make a difference, at a lower cost to Medicaid, with a greater possibility of more funds recovered through payback."

Ron is detailed in his critique of agency guidelines and manuals, and he provides clear examples of his "better" sole benefit analysis. 

May 15, 2014 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

Frolik & Kaplan: "Elder Law in a Nutshell" (6th Edition!)

It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly  complicating this little task is the fact that I count both authors as friends and mentors.

The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.")  And as with fine wine, this book, now its 6th edition, becomes more valuable with age.  This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series.  Presented in the book are introductions to the following core topics:

  • Ethical Considerations in Dealing with Older Clients
  • Health Care Decision Making
  • Medicare and Medigap
  • Medicaid
  • Long-Term Care Insurance
  • Nursing Homes, Board and Care Homes, and Assisted Living Facilities
  • Housing Alternatives & Options (including Reverse Mortgages)
  • Guardianship
  • Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
  • Social Security Benefits
  • Supplemental Security Income
  • Veterans' Benefits
  • Pension Plans
  • Age Discrimination in Employment
  • Elder Abuse and Neglect

The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like."  Curiously, they don't mention potential clients, including family members of older persons.  I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation.  This book is a very good starting place.

What's missing from the overview?  Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning.  Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down. 

Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal.  Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options.  Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania).  See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.    

Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?  

May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Eye of the Storm? Corporations & Liability for Negligence in Long-Term Care

One of the tough questions in the arena of "law and aging," which is arguably broader than "elder law," is the scope of liability for negligence or mismanagement in long-term care. A lot rides on this issue.  For example, recently one friend mentioned to me that a large law firm in his city was spending most of its litigation time defending nursing homes, not doctors or hospitals, on personal injury claims.  

Hints of the "scope" of corporate long-term care liability issues appear as early as 2003. In Cases and Materials on Corporations (LexisNexis 2d 2005) by Professors Thomas Hurst (Univ. of Florida) and William Gregory (Georgia State), in the chapter on "Piercing the Corporate Veil," the authors include the case of Hill v. Beverly Enterprises-Mississippi, Inc., 305 F.Supp. 2d 644 (S.D. Miss. 2003), in which the court permits a nursing home resident's personal injury case to go forward for trial against the nursing home's "administrator" and two "licensees." The court rejects the defendants' arguments that without direct involvement or personal participation in the plaintiff's care, no liability can attach. 

In the notes after the Beverly case, the textbook authors ask whether this ruling is an example of "piercing the corporate veil."  The answer appears to be no; rather, the point of the authors' inclusion of the case in that chapter is that high level administrators may still face personal liability without hands-on involvement, because they have statutory or common law "duties," such as hiring, supervision, or training of employees.  The court emphasized, "There is no requirement of personal contact, but rather of personal participation in the tort; and a breach by the administrator of her own duties constitutes direct, personal participation."

Fast forward 11 years.  As recently discussed in McKnight's News, a 2014 federal bankruptcy court recently issued a ruling analyzing parties' attempts to pierce a particular for-profit nursing home enterprise's corporate veil in order to collect some $1 billion dollars in judgments. Success in collection apparently depends upon the judgment holders' ability to recover from a "bankrupt" corporate defendant's current or former "parent" corporations, the former parent's shareholders, lenders (private equity firms), or other individuals and entities alleged to have received the bankrupt subsidiary's assets as part of a "bust-out scheme."  

In March 2014, the Bankruptcy Court for the Middle District of Florida ruled these more remote defendants can face potential liability.  The court concludes that while the plaintiffs have failed to state a claim permitting "veil-piercing," the plaintiffs have stated a claim for relief against corporate directors and "upstream" entities on either a direct allegation of breach of fiduciary duty (for a director who served in multiple boards) or on an indirect theory of liability, "aiding and abetting a breach of fiduciary duty."  The court also permits the plaintiffs to proceed on theories of fraudulent transfers or conspiracy to commit fraudulent transfers against the parent company, successor entities, and certain individuals who appear to be corporate officers or directors. Of course, a decision on a pretrial motion to dismiss does not mean the defendants will ultimately be found liable.

The judge takes pains to outline the series of corporate entities and transactions, which appear to include overlapping officers or directors, that were used to build a national long-term care empire, but also, as alleged by the plaintiffs, to give separate entities control over physical assets or daily operations or incoming revenue, and to isolate and limit liability for debts.  To highlight one of the alleged sham transactions, the court describes the debtor corporation's "sole shareholder" as "an elderly graphic artist who currently lives in a nursing home" and who may have had some recollection of being asked to invest in "computer equipment," but who did not, in fact have or spend any money for his shares. 

The Bankruptcy Court's memorandum opinion, in In re Fundamental Long Term Care Inc., Jackson v. General Electric Capital Corp., 507 B.R. 359 (M.D. Fla. March 14, 2014), is "colorful" in the way that only legal geeks probably appreciate, although at one point the court observes that the "'bust-out' scheme alleged in the complaint . . . has all the makings of a legal thriller."  Plus, there are political implications of the Florida decision reverberating in Illinois, as described by the Chicago Tribune, here.  Scott Turow, this is in your backyard.  Are you taking notes? 

As for the $1 billion in judgments that triggered the collection efforts, they apparently represent 6 separate cases, and it appears that at least one was entered when no lawyer appeared to defend the nursing home at a jury trial against claims of negligence, as explained in a Tampa Bay Times news account in 2012 about one of the cases, where a wheelchair-bound resident was alleged to have fallen to her death in an unlocked stairwell. 

And by the way, just because a nursing home is organized as a nonprofit corporation does not mean that it can necessarily escape liability for officers and directors, as we recounted last December in discussing In re Lemington Home for the Aged. 

May 13, 2014 in Federal Cases, Health Care/Long Term Care, State Cases | Permalink | Comments (0) | TrackBack (0)

Monday, May 12, 2014

Oklahoma Passes First in the Nation “Care Act” Supporting Family Caregivers

 

With the signature of Governor Mary Fallin on Senate Bill 1536, Oklahoma today becomes the first state in the nation to pass The CARE ACT.  Backed by AARP, the Caregiver Advise, Record, Enable (CARE) Act has been introduced in IL, NJ and HI.  Other states are working to pass a State Plan in Support of Family Caregivers or advancing additional initiatives to support family caregivers such as workplace protections and respite care.  Following is a statement from AARP Vice President of State Advocacy and Strategy Integration (SASI) in AARP's Government Affairs group on the new Oklahoma Law:

 

“I was a family caregiver for my Mom and Pop for more than 15 years.After all they’d done for me it was my pleasure to care for them.  But the tasks were intimidating.  Like me, 42 Million family caregivers in America are eager to help but are challenged by medical responsibilities that come home from the hospital with our loved ones.

 

“Today, with the signing of The CARE Act, Oklahoma’s 600,000 family caregivers will have new support when their loved ones go into the hospital as well as consultation on the tasks they must provide to safely care for their loved ones when they’re discharged home.

 

“As the first state to pass The CARE Act, Oklahoma is the pacer for many other states ready to introduce or vote out The CARE Act and state plans and initiatives to help family caregivers as they assist their loved ones to live independently at home as they age.  We look also forward to seeing many more state legislatures get behind bills to support family caregivers.  After all, we know that family caregiving is an act of love, but that doesn’t mean that it isn’t real work that requires real support.”

 

The CARE Act requires hospitals to:

 

  • Record the name of the family caregiver when a loved one is admitted into a hospital;
  • Notify the family caregiver if the loved one is to be discharged to another facility or back home; and,
  • Consult and prepare the family caregiver on the medical tasks – such as medication management, injections, wound care, and transfers – that he/she may perform at home.

 

May 12, 2014 in Health Care/Long Term Care, State Statutes/Regulations | Permalink | TrackBack (0)

Elder Law Attorneys Get "Props" During Fresh Air Interview with Cartoonist

Roz Chast, well known for her cartoons in The New Yorker, has been getting well deserved coverage of her new graphic book, "Can't We Talk About Something More Pleasant?"   She brings her light, dark touch to bear on a tough topic, a daughter's relationship with her increasingly frail and sometimes stubborn parents. Roz Chast Memoir

Despite the obvious relevance of her book to this Blog, I was nonetheless pleasantly surprised when I heard Chast interviewed recently on the radio by Terry Gross for Fresh Air.  Roz Chast recounts how a lawyer specializing in "elder care law" (the phrase I increasingly hear used by lay people, displacing "elder law") helped her and her parents get to the heart of some very tough issues they'd been avoiding, as suggested by the title of her memoir.  As captured on the NPR website report, in describing the lawyer during the interview, Chast said:

"This person was really good.  And I think he was able to ... somehow make them trust him enough that they could open up a little bit about things that they really never wanted to open up about, like money and talking about the future.  I was there with them when he came over and we talked about things like health care proxy forms.  Things I had never thought about, things I had never heard of.  It was very, very helpful."

Reading between those few lines, I see the type of caring, tactful attorney -- and someone who makes home visits -- that I often have the pleasure of working with in Elder Law.

Chaz also talks humorously -- and with great candor -- about the dollars and "sense" of long-term care, and how she as a daughter felt about her parents' money going to pay for assisted living. 

Refreshing Fresh Air! 

 

May 12, 2014 in Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

National Senior Citizens Law Center Shares Advocates' Guide

The National Senior Citizens Law Center (NSCLC), drawing upon the nonprofit firm's experience in successful advocacy about access to benefits, is sharing its recommendations on how to help individuals obtain Medicaid funding for Home and Community Based Services (HCBS).  The guide is titled "Just Like Home: An Advocate's Guide to Consumer Rights in Home and Communit Based Services." The authors, Eric Carlson, Hannah Weinberger-Divack and Fay Gordon, explain:

"New federal Medicaid rules, for the first time, set standards to ensure that Medicaid-funded HCBS are provided in settings that are non-institutional in nature.  These standards, which took effect in March 2014, apply to residential settings such as houses, apartments, and residential care facilities like assisted living facilities.  The standards also apply to non-residential settings such as adult day care programs.

 

This guide provides consumers, advocates and other stakeholders with information regarding multiple facets of the new standards, including consumer rights in HCBS, and the guidelines for determining which settings are disqualified from HCBS reimbursement.  This guide is based on the federal rules and subsequently issued guidance, and will be updated as further information becomes available."

The twenty-page guide is free and downloadable -- more reasons to appreciate the hard-working folks at NSCLC. The NSCLC lawyers remind us that implimentation of HCBS is far from uniform from state to state.  Knowing what is happening outside your own state will increase the odds of successfullly advocating for change, and securing threshold, quality care in your state.

May 8, 2014 in Federal Cases, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 6, 2014

Honor Older Veterans by Helping Them Access Services

Last Sunday, the Philadelphia Inquirer carried an Op-Ed by Patrick Murphy, an Iraq war veteran, and Karen Buck, executive director for SeniorLAW Center in Philadelphia.  Their words provide a welcome reminder, contrasting with the news I reported earlier today about allegations of inadequate care for veterans in Arizona.  In part they write:

"Experts estimate that 14 percent of the adult homeless population has served in the U.S. military. After valiant service, beterans deserve the most basic of human needs:  safe shelter, protection from abuse, enought to eat. 

 

What can we do to change this story for older veterans? 

 

First, know who the veterans are in  your daily life and thank them for their service.  Peace at home is a gift made possible by the harsh sacrifice of others; it's easy to take for granted.  Join  us in doing more by showing gratitude through action.

 

...Help connect an older veteran with the services he needs -- and encourage him to access them.  Many older veterans don't know what resources are available or they associate asking for help with weakness.  Yet, from the VA, they may be eligible for income supports, home-based or nursing home care, health care, burial assistance, education, and other benefits.  Nonprofits can help provide free legal assistance to address issues that arise over housing, family, health care, consumer issues, elder abuse, and financial exploitation.  Legal services rank among the top unmet needs of veterans, but we can all become advocates to help vets get the support they need and deserve."

As Patrick and Karen demonstrate, support for local legal service organizations in your area can be effective in helping veterans access key benefits, while also providing another important watchdog to help reduce or prevent the likelihood of fullblown VA scandals.

Experts estimate that 14 percent of the adult homeless population has served in the U.S. military. After valiant service, veterans deserve the most basic of human needs: safe shelter, protection from abuse, enough to eat.

What can we do to change this story for older veterans?

First, know who the veterans are in your daily life and thank them for their service. Peace at home is a gift made possible by the harsh sacrifice of others; it's easy to take for granted. Join us in doing more by showing gratitude through action.

Volunteering is one form of action. Help connect an older veteran with the services he needs - and encourage him to access them. Many older veterans don't know what resources are available or they associate asking for help with weakness. Yet, from the VA, they may be eligible for income supports, home-based or nursing home care, health care, burial assistance, education, and other benefits. Nonprofits can help provide free legal assistance to address issues that arise over housing, family, health care, consumer issues, elder abuse, and financial exploitation. Legal services rank among the top unmet needs of veterans, but we can all become advocates to help vets get the support they need and deserve.

Read more at http://www.philly.com/philly/opinion/20140504_Don_t_forget_key_work_of_U_S__vets.html#qwbXm13qk5jXlIby.99

Experts estimate that 14 percent of the adult homeless population has served in the U.S. military. After valiant service, veterans deserve the most basic of human needs: safe shelter, protection from abuse, enough to eat.

What can we do to change this story for older veterans?

First, know who the veterans are in your daily life and thank them for their service. Peace at home is a gift made possible by the harsh sacrifice of others; it's easy to take for granted. Join us in doing more by showing gratitude through action.

Volunteering is one form of action. Help connect an older veteran with the services he needs - and encourage him to access them. Many older veterans don't know what resources are available or they associate asking for help with weakness. Yet, from the VA, they may be eligible for income supports, home-based or nursing home care, health care, burial assistance, education, and other benefits. Nonprofits can help provide free legal assistance to address issues that arise over housing, family, health care, consumer issues, elder abuse, and financial exploitation. Legal services rank among the top unmet needs of veterans, but we can all become advocates to help vets get the support they need and deserve.

Read more at http://www.philly.com/philly/opinion/20140504_Don_t_forget_key_work_of_U_S__vets.html#qwbXm13qk5jXlIby.99

May 6, 2014 in Consumer Information, Health Care/Long Term Care, Retirement | Permalink | Comments (1) | TrackBack (0)

Wait Times for Sick Veterans: Looking at the Phoenix VA Whistleblower Claims

While in Arizona over the weekend, I had time (while hiding from the first days of this summer's 100+ degree days) to catch up on the latest news about allegations involving the Veterans Administration Health Care System in Phoenix.  As reported in the Arizona Republic, key concerns focus on allegations that:

  • Veterans were forced to wait unreasonable lengths of times for needed health care appointments (including allegations of waits of over 200 days);
  • "Forty or more" veterans died while awaiting care;
  • Records were falsified or improperly maintained regarding wait times, with allegations of a "secret list" showing more accurate information;
  • Records have been or will be destroyed.

The U.S. House Committee on Veterans' Affairs has reportedly issued orders to the VA to preserve documents.  The key allegations of failure to provide necessary care come from two physicians, including one who worked for the VA for 24 years before retiring in December.  

I'm not seeing concrete details about the wait times or deaths, although at least one death by suicide of a 20-year veteran is described by a family member in a letter to the editor of the Arizona Republic.  It seems unlikely that wait-time delays would be a facility-specific practice and would seem more likely to be a larger system issue. Some allege the problems can be tied to specific administrators.  Pinning down such practices is difficult at best, but is there more bad news ahead

May 6, 2014 in Federal Cases, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)