Tuesday, April 7, 2015
St. Louis University's Journal of Health Law and Policy has recently released a theme issue, focused on "Health Care Reform, Transition and Transformation in Long-Term Care." A great line-up of articles and authors, including:
- Home & Community-Based Long-Term Services and Supports: Health Reform's Most Enduring Legacy? by Marshall B. Kapp
- Care Coordination for Dually Eligible Beneficiaries, by Katie M. Dean and David C. Grabowski
- The Challenge of Financing Long-Term Care, by Judy Feder
- Rationalizing Home and Community-Based Services Under Medicaid, by Laura D. Hermer
- The Broken Promise of OBRA '87: The Failure to Validate Survey Protocol, by Malcolm J. Harkins III
In addition, there are two relevant Notes written by SLU students:
- Short-Stay, Under Observation. or Inpatient Admission? How CMS' Two Midnight Rule Creates More Confusion and Concern, by Rachel A. Polzin
- Disclosure for Closure? Why the Self-Referral Disclosure Protecol Process Paired with the 60-Day Overpayment Rule Creates More Headaches than Solutions, by Peter J. Eggers
April 7, 2015 in Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Monday, April 6, 2015
According to an informational bulletin from CMS on April 1, the traditional medical assistance program (TMA) and the QI program ended. The QI program had been extended until March 31, 2015, so both programs ended effective April 1, 2015. As a result of the end of the QI program and "[i]n the absence of an extension, states will not be required to discontinue their payment of Part B premiums for QI beneficiaries, but these payments will no longer be eligible for federal reimbursement from CMS unless and until the program is reauthorized" The informational bulletin is available here.
Saturday, April 4, 2015
When it becomes impossible for a loved one to stay at home without help, one decision that families made need to face is whether to use an agency, or hire one or more individuals outright. Agencies are usually more expensive (at least on paper). But direct hires of home aides can raise other questions, including how to handle state and federal income taxes and documentation, insurance, transportation (read: more insurance questions), coverage for holidays, sick leave, overtime, and more. You start off thinking this is short term help; the reality is it can last much longer....
But there is still one more question that may not be on the family's radar screen, until it is too late.
If the informal home care arrangements eventually don't suffice, perhaps because of increasing frailty and care needs, what happens when the individual's money is gone and there is a need for Medicaid-paid care?
As explained in a recent Michigan Court of Appeals case, "informal" arrangements for home care may trigger ineligibility for Medicaid-paid care based on state rules or policies implementing federal law.
April 4, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 2, 2015
Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.
In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14. North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."
At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA.
By the time the attorney met with the man, the man had been living in the care center for several months. After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA. The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.
Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity. The Court, however, observed:
"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."
Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.
Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so.
Lots of potential lessons here. A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation. As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment." This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.
Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way.
April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | TrackBack (0)
Tuesday, March 24, 2015
The Alzheimer's Association's 2015 Facts & Figures Report that many doctors fail to tell patients (or their family members) about a diagnosis of Alzheimer's is getting a lot of attention, including this Morning Edition story.
Why aren't doctors revealing their diagnoses? During my work in Northern Ireland on access to justice for older adults, we realized that the doctor's diagnosis is a key opportunity for families to receive early advice about "non-medical" planning, such as arranging for powers of attorney or other arrangements for financial management, while the patient has adequate cognition to help with decision-making. If communication of the diagnosis is delayed, the window for effective participation in planning may also be lost.
Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"
Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."
In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:
"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."
The article was published in the Columbia Law Review, March 2015.
Monday, March 23, 2015
Ever been asked that question "how's your health?" (or any of the derivative questions, such as "how are you" (to which you typically respond, "fine, thank you and you?") or "how are you feeling?") You typically respond "fine, thanks", unless you are talking to your doctor, and then you may be more specific. But typically when a person is asked to describe her health, she may not list her chronic conditions that may come with aging.
Jane Brody's March 2, 2015 blog post on Healthy in a Falling Apart Sort of Way opens with her relating how, when filling out a medical questionnaire asking her to evaluate her health, she typically checks the box "healthy." After sharing how she really is with the readers, she then turns to a discussion of how health is really measured, quoting some experts that "note that the ability to continue to participate in society might be more important than measured gains in health. The ability to cope with life’s ailments might be more a more important and realistic measure of health than complete recovery."
She then considers modern medicine "[t]he widespread belief that medicine today has the potential to prevent most health problems or detect them early enough for a cure has succeeded in “medicalizing” modern life and raising the costs of medical care to unsustainable levels." She looks at the different theories regarding preventive care, testing and early intervention. She reviews the W.H.O. factors for using health care and ends with advice from one of the experts who suggests using caution and good judgment when choosing medical care.
So what does it mean to be healthy in 2015?
Thursday, March 19, 2015
The National Academy of Elder Law Attorneys (NAELA) recently submitted detailed formal comments to proposed VA rules affecting asset tests for eligibility for Veterans benefits. They begin:
NAELA welcomes the effort to try to make the eligibility criteria for pension and other benefits administered by VA objective and transparent, but we believe that these proposed regulations, if implemented, would cause substantial harm to wartime Veterans, their spouses, and dependents and will not solve the serious issue of unscrupulous organizations taking advantage of potential beneficiaries by selling inappropriate annuities or trusts.
In addition, we express the serious concern that the proposed rule’s 3-year look-back period and transfer of assets penalty exceed statutory authority, opening up VA to future litigation and causing additional uncertainty for Veterans and their families.
For the full NAELA submission, see here.
Wednesday, March 18, 2015
There is an interesting new YouTube video available, with charismatic, high-profile actors encouraging all of us to initiate "The Talk" about how we -- or our loved ones -- want to handle the possibility, indeed probability, that someday we will need long-term care. Rob Lowe, Maria Shriver, Maggie Gyllenhaal, Angela Bassett, Zachary Quinto and Jim Nantz admit the difficulties of talking about growing old, often using vivid tidbits from their own lives or families to emphasize the importance of breaking past the barriers of denial.
I like the video. It is simple, direct. But, at the same time, I find the initial video, while interesting, to be a lacking in specifics about what it means to "talk" about long-term-care planning. The 2-minute video is actually part of a series created by Genworth, the major seller of long-term care insurance, and if you hit the right (wrong?) buttons you are directed to Genworth websites that offer more details, especially about -- surprise, surprise -- buying long-term care insurance.
I suspect that many people will panic if they hear "pay some money now" in order to buy LTC insurance, as even a part of the "solution." See what you think:
Monday, March 16, 2015
Proposal to Increase Anti-Impoverishment Protections for Community Spouses Introduced in Connecticut
One of the declared purposes of modern federal law setting threshold standards for eligibility for Medicaid for long-term care is "protection of the community spouse" from impoverishment. At least that's a declared objective of amendments to federal law, passed by Congress in 1988. As one of Dickinson Law's Elder Protection Clinic clients once observed, "slower" impoverishment isn't the same as protection. States have choices to make within federal guidelines about minimum and maximum sums, about how much money community spouses can keep when their loved ones apply for Medicaid for long-term care.
In Connecticut, there is new legislation proposed, aimed at increasing the level of protection of community spouses in that state. As described in a recent article from the Hartford Courant:
Allowing the spouse of a person in a nursing home to keep enough money to live on independently is, in many ways, a moral issue. But in a tight budget year in Connecticut, it's a fiscal issue.
A proposal that would increase the minimum assets that a spouse living in the community can keep - from $23,844 to $50,000 – in order for his or her partner to be eligible for Medicaid nursing home care is being backed by elder advocates, who say the increase would help seniors, especially women, remain able to live independently. But the move is being opposed by the Department of Social Services on the grounds it will shift millions in costs to the state-funded Medicaid program.
The proposal would affect couples with combined assets of between $23,844 and $100,000....
It will be interesting to see whether this bill has traction, and whether other states are also willing to step up to the financial plate.
Sunday, March 15, 2015
Attorney and author Steve Dale has published a new book, Achieving Independence- A Guide to Creating an Estate Plan Which Ensures Quality of Life for You and Your Loved One with a Disability. According to the author
The primary purpose of this guide is to assist families in the planning process of creating a special needs trust for a loved one with a disability. Stephen shares with the reader his experience as an attorney that has focused primarily on estate planning for persons with disabilities and their families for the past 25 years. He also illustrates some of the challenges that persons with disabilities and their families face by sharing his experiences growing up in California’s State Hospital System as a child of three generations of institutional workers and later as a Psychiatric Technician giving direct care in a variety of psychiatric hospitals for 17 years.
Stephen and his office developed the Achieving Independence System to educate clients on key issues and decisions commonly encountered in creating a special needs trust so clients can be better prepared before meeting with their attorneys and advisors to create a team that best serves their needs. After the plan is created, an effective plan will assist the trust management team to focus on what is really important; to assist a person with a disability to live as independently as possible and to experience a quality of life that many persons who are not disabled take for granted. In essence to achieve the highest level of independence possible free from abuse and neglect.
The book runs 133 pages and is available from Amazon as a paperback for $20.00. Steve's Independence project is explained on his website, Achieving Independence. Full disclosure, Steve is a friend and a regular speaker at Stetson's annual Special Needs Conference.
Thursday, March 12, 2015
Colleagues in the U.K., Dr. Una Lynch in Northern Ireland and Dr. Karim Hadjri in Lancashire, England, shared information on an opening for a new academic position in aging research. The listing nicely illustrates how global research into aging issues is multi-faceted, challenging and not solely focused on health care:
The postholder will be an established researcher in Architecture or an Ageing related discipline, with demonstrable evidence of developing and promoting their cognate research or knowledge transfer/consultancy activity to high-level peers. The appointee will work closely with the Project Coordinator of ODESSA. ODESSA - Optimising care delivery models to support ageing-in-place: towards autonomy, affordability and financial sustainability, is a Europe-China initiative funded by China NSF and research funding agencies from four EU countries (UK, France, Germany and The Netherlands) under the Understanding Population Change theme. The project partners are Tsinghua University from Beijing, China, and Université Paris Dauphine and Université CNRS/Paris I-Panthéon Sorbonne from Paris, France. ESRC is the UK funding agency and the programme manager. The total value of the project is around GBP 1m and duration is 36 months starting on 1st March 2015.
The successful candidate will have an established international reputation in research (or knowledge transfer/consultancy), research project coordination and management, with demonstrable high impact areas that are supported and evidenced in leading peer-reviewed journals and extant literature. Educated with a PhD in architecture, built environment, or ageing related disciplines, and evidence of knowledge of architecture or ageing related disciplines research methods as well as a proven track record of meeting project deliverables and deadline is essential for this position.
Applicants can obtain further information and details here or by contacting the Project Coordinator, Professor Karim Hadjri, at University of Central Lancashire.
Tuesday, March 10, 2015
University of Florida Professor Stephen M. Golant has a new book, Aging in the Right Place. The gerontologist advocates examining a host of modern options, and urges resistance to an overly simplistic mantra of "aging in place" as the only goal. For example, he examines assisted living, co-housing, supported "independent living" environments, the "village" movement and CCRCs.
Interviewed for a Washington Post article, Golant explained:
“It’s not an all-or-nothing situation, obviously,” Golant said in an interview about aging-in-place. “But I just wanted to point out the imperfections, and the weaknesses in some of the arguments. . .I want to point out that sometimes there’s too much hype.”
It’s the sort of hype that has surrounded what he calls the New Gerontology, a long running trend that sometimes seems to imply that if people follow certain regimens of diet, physical exercise, social activity and cognitive training, they might avoid aging altogether.
As I have also suggested here, it is important for individuals and families to be realistic about what it will take to stay at home safely, making it important to be open to a larger definition of "home" in order to emphasize better quality of life.
In Draper v. Colvin, petitioner sought judicial review of SSA's denial of her application for SSI benefits. Her claim was sympathetic, as "[e]ighteen-year-old Stephany Draper suffered a traumatic brain injury in a car accident in June 2006."
In an admittedly "hard line" ruling on March 3, the 8th Circuit rejected her argument that her parents' intent to establish a valid third-party-settled special needs trust, using proceeds from a settlement of a personal injury suit on her behalf, should permit her to claim SSI.
The ruling means that over $400,000 will be treated as "available resources," thus requiring spend down before she would be eligible for benefits. The court explained (minus citations):
Admittedly, some evidence in the record supports Draper's claim that her parents intended to act in their individual capacities. Draper's parents identified themselves individually as settlors and trustees, and the trust document explicitly states that it was established “pursuant to 42 U.S.C. § 1396p(d)(4)(A)," a provision which notes that a third party, such as a parent, must create the special needs trust for the benefit of the disabled person. Nevertheless, as discussed [earlier in the opinion], other facts provide substantial evidence to support the conclusion that Draper's parents acted using the power of attorney when establishing the trust.
The Court continued on to its tough bottom line:
March 10, 2015 in Cognitive Impairment, Estates and Trusts, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Researchers Amelia Karraker, Department of Human Development and Family Studies at Iowa State University and Kenzie Latham, Department of Sociology at Indiana University and Purdue University, recently published "In Sickness and in Health? Physical Illness as a Risk Factor for Marital Dissolution in Later Life" in the Journal of Health and Social Behavior. From the abstract:
"The health consequences of marital dissolution are well known, but little work has examined the impact of health on the risk of marital dissolution. In this study we use a sample of 2,701 marriages from the Health and Retirement Study (1992–2010) to examine the role of serious physical illness onset (i.e., cancer, heart problems, lung disease, and/or stroke) in subsequent marital dissolution due to either divorce or widowhood. We use a series of discrete-time event history models with competing risks to estimate the impact of husband’s and wife’s physical illness onset on risk of divorce and widowhood.
We find that only wife’s illness onset is associated with elevated risk of divorce, while either husband’s or wife’s illness onset is associated with elevated risk of widowhood. These findings suggest the importance of health as a determinant of marital dissolution in later life via both biological and gendered social pathways."
The highlighted finding is generating lots of coverage in the popular press. Thanks to Naomi Cahn, who is also a co-author of the similarly relevant book, Marriage Markets: How Inequality is Remaking the American Family, for sharing the study link.
Friday, March 6, 2015
Harvard Law Professor Robert H. Sitkoff is speaking at University of Illinois School of Law on Monday, March 9. The topic is "Revocable Trusts & Incapacity Planning: More then Just a Will Substitute."
Here are details provided by Illinois Law Professor Richard Kaplan:
The use of trusts has evolved from means of transferring property to mechanisms for managing assets and more recently, to will substitutes for avoiding probate and simplifying post-death transfers. But lawyers increasingly use revocable trusts in planning for possible client incapacity to avoid the costs and publicity associated with custodianship and guardianship. State-level reforms of trust law to accommodate older uses of these devices are not, however, well-suited to this newer use of trusts, and this lecture will examine those reforms in this context.
Professor Sitkoff was the youngest professor to receive a chair in the history of Harvard Law School. He previously taught at New York University School of Law and at Northwestern University School of Law. After graduated from the University of Chicago Law School with High Honors, he clerked for then Chief Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Professor Sitkoff is an active participant in trust and estates law reform. He is a liaison member of the Joint Editorial Board for Uniform Trusts and Estates Acts within the Uniform Law Commission and has been a member of several drafting committees for acts involving trusts and estates matters. Sitkoff is also a member of the American Law Institute’s Council and has served on the consultative groups for the Restatement (Third) of Trusts and the Restatement (Third) of Property: Wills and Other Donative Transfers.
Word from Dick Kaplan is that Rob's presentation will be available (eventually) via a recording, and his presentation will also be captured as an article in University of Illinois' Elder Law Journal.
My students often ask why all casebooks can't be as engaging to read as the "Dukeminier" text on Wills, Trusts & Estates -- and I suspect one reason is that Rob Sitkoff, although uniquely prolific and gifted, is still only human and cannot write them all!
Postscript: I asked Rob to send me something other than his "official" Harvard photo. The one above seems to capture his spirit and the smile I sometimes detect in his footnotes.
Thursday, March 5, 2015
Neither short nor sweet? Here is a link to the written Transcript of the oral argument before the United States Supreme Court on March 4, 2015 in King v. Burwell.
Sunday, March 1, 2015
This week, the Supreme Court will hear oral arguments on the latest challenge to the ACA, in King v. Burwell. The New York Times offers historical perspective about an earlier journey to enact federal legislation that mandated the nation's first broad health care coverage, the Medicare program:
Lyndon B. Johnson was often derided for being egocentric, but when it came time to sign his landmark bill creating Medicare, 50 years ago this July, he graciously insisted on sharing the credit with the 81-year-old Harry Truman. At almost the last moment, Johnson decided to change the location from Washington to Truman’s presidential library in Independence, Mo.
During the ceremony, Johnson noted that in 1945, the newly installed President Truman had called for national health insurance, planting “the seeds of compassion and duty which have today flowered into care for the sick, and serenity for the fearful.” Johnson then presented his host with the nation’s first Medicare card. Deeply moved, Truman later wrote in a letter to Johnson that the ceremony was “the highlight of my post-White House days.”
For more details, read "LBJ and Truman: The Bond That Helped Forge Medicare."
For more on this week's Supreme Court challenge, from the Washington Post, see "Five Myths About King v. Burwell."
Friday, February 27, 2015
Texas attorney Renée C. Lovelace has literally written the book -- a guidebook -- on Pooled Trust Options. Renée was a recent guest speaker at Penn State's Dickinson Law, appearing before students in an advanced seminar on planning techniques. Indeed, our students had specifically asked to hear from experienced practitioners on special needs trusts, and with the help of the National Elder Law Foundation we were able to host a nationally known speaker to do just that.
Renée (third from the left, in blue) helped our students identify appropriate uses of pooled trusts, such as where the beneficiary's needs could be uniquely well-served by a trustee who is familiar with the challenges sometimes encountered in managing assets on behalf of persons with disabilities.
While the special needs beneficiary may be frustrated by a manager's handling of "his" (or "her") money, sometimes it is the family that has questions about application of the law. Recently I was reading a New Jersey case decision, where a family was challenging the state's attempt to seek reimbursement for medical and care expenses expended by the state, following the death of their disabled daughter. At the core of the dispute was what appeared to be a misunderstanding on the part of the family about the nature of their daughter's special needs trust, which they were describing as a pooled trust. The court pointed out, that in the absence of a nonprofit manager, the trust could not be deemed a (d)(4)(C) trust or "pooled" trust, that would have allowed assets remaining after the death of the daughter to stay in the trust for the benefit of other disabled persons, rather than be subject to the state's reimbursement claim.
Thus, the case is a reminder that pooled trusts, properly created and managed are usually drafted as special needs trusts (SNTs). However, not all SNTs are pooled trusts. Or as Renée explains so well in her thorough guidebook:
Check out Volume 48, Issue 1 of the Indiana Law Review which contains articles from the 2013 Program on Law & State Government Fellowship Symposium: State Governments Face the Realities of Aging Populations. Three articles are included from the symposium, all of which are available on-line. The articles include Introduction: Governing Choices in the Face of a Generational Storm, Aging Populations and Physician Aid in Dying: The Evolution of State Government Policy, and What the Future of Aging Means to All of Us: An Era of Possibilities.