Thursday, September 21, 2017
I like to think of myself as Friday's child, even as I confess I don't quite live up to the standard of being truly giving. For example, I haven't changed jobs or given up my job to be a more direct caregiver for my parents. I'm the child who flies across the country on long-weekends to my parent's home town, and tries to demonstrate my loving and giving nature by fixing all of their problems. I have the "well-meaning Friday child" syndrome. And there are a lot of us out there; I'm often seated next to someone attempting this same care mission on red-eye airplane flights.
Mostly, this pattern tends to drive my folks and my sister, who lives about 30 minutes from my parents' home, a bit crazy. I rationalize my behavior by telling myself, "They asked me to fix XYZ problem!" But doing so on the run is often a less-than-successful strategy. When my father was alive and still at home, he used to respond to my arrival with an immediate question, "when are you leaving?" I used to try to explain away that response by thinking, "he just wants to know so that he can get in an extra ride to the airport, one of his favorite outings." But now my mom is asking me the same question and she doesn't enjoy airport rides.
Over time, one of the things I've learned is that rather than trying to impose solutions, it's better to use these short trips to identify options. For example, as it became clear (at least to me) that my father might not be able to stay at home for the rest of his life, even with round-the-clock assistance, I suggested to my mother that we make a long list of different types of care settings and visit one each time I was home. Sometimes we even saw two spots. Sometimes we made a second visit to a spot we'd looked at earlier. Eventually my mother, worn out and worn down by the care needs of her husband, called me and suggested it "was time" to select a spot, and she already knew which spot was the right one. That process took more than eight months of visits. It meant my sister, my mom and I needed to be on the same team for this big change.
The spot Mom chose -- one of the first on our visit list -- wasn't the fanciest, but it proved to be perfect for Dad. The first few weeks were rough on everyone, but Dad did settle in and sometimes, out of the blue, he would say, "This is a wonderful place, isn't it?" For him it was actually a better place because he had five safe acres of freedom to roam, rather than being trapped in a multi-storied house that made movement much more dangerous and him more anxious. He calmed down, my mom calmed down, my sister got some breathing space, and I relaxed a bit on those still-frequent weekend visits.
Elder Law attorneys know all about the well-meaning child, and they tend to keep the decks clear on Fridays for the meetings with "out-of-town" children, often with one or both parents in tow. The experienced attorney knows how to find the balance between "rush" and "enough time," in order to help families make the best decisions for the future.
Tuesday, September 19, 2017
Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"
We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products. For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.
Recently In Texas, two competitors have been arguing over the definition of assisted living.
In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community. Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.
On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."
Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise. Harbor hired a private investigator to pose as a prospective client for LTIL. The investigator tape-recorded a sales representative for LTIL.
Arguably, it seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.
During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . . Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . . She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.
Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . . Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help.
Monday, September 18, 2017
Consumer Reports published an article that focuses on the terms of an ALF admissions contract. Putting the Assisted Living Facility Contract Under a Microscope starts with recommending that an elder law attorney review the contract before the client signs it. The article lists 4 key areas to examine, including responsible party provisions, costs of care, mandatory arbitration clauses and grounds for discharge. The article offers advice and things to look for within each of these areas. Among others, the article quotes Hy Darling, current president of NAELA and Shirley Whitenack, former NAELA president.
Over the weekend, Florida Governor Rick Scott announced he was "directing" state agencies to "issue emergency rules to keep Floridians safe in health care facilities during emergencies." Arguably, this an example of locking the barn door after the horses have escaped. On the other hand, especially with another hurricane already looming, certainly no political leader wants to be seen as doing nothing.
There are some important questions -- that can perhaps be translated into lessons -- emerging from the most recent tragedy with eight nursing home residents perishing from heat related complications in Broward County Florida after Hurricane Irma.
1. Should States Mandate Specific Equipment? For example, Governor Scott is seeking a rule that mandates "ample resources" including a "generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for a least 96-hours following a power outage." It should be clear, certainly after Katrina (2005), Harvey (2017) and Irma (2017), that some of the biggest dangers of extreme weather events ares not just the wind or rain or fire or other immediate impact, but the consequences of loss of power or other critical resources.
2. Can Inspectors Better Assure Compliance with Safeguards? Governor Scott's demands focus not just on the care facilities' obligations, but on the role of state and local officials to have a system of checks and balances to increase the likelihood the safeguards are actually in place and operable, and not "just" a written plan for the future.
3. What Safeguards Were Effective At Similarly Situated Facilities? News articles report some push back from providers to Scott's measures, who seem to be arguing feasibility and cost. But, certainly there were providers, faced with the same challenges as the Broward County nursing home, who were successful in protecting their residents. Perhaps the more important lesson to learn -- and learn quickly -- is what was affordable and effective?
Also, I think that there are some questions that can be raised about whether and how family members and the larger community might be able to help as part of a plan for disaster preparedness. Certainly not all, and perhaps not even most, families will be able to help in providing post-disaster assistance including temporary shelter. But, I think at a minimum, families would want to know what steps they might take to be part of the safety plan and post-event response.
Thursday, September 14, 2017
As investigations begin into the report of 8 deaths of residents at a single nursing home in Broward County Florida three days after the region was impacted by Hurricane Irma, it occurred to me to look into post-Katrina legal proceedings involving nursing homes.
It turns out that very recently, in June 2017, the Louisiana Court of Appeals (4th Circuit) affirmed an award of $1,000,000 in damages for pain and suffering arising from one elderly woman's death at a nursing home four days after Hurricane Katrina hit New Orleans in August 2005. The nursing home argued comparative fault on the part of the Corp of Engineers for its "negligent design, construction and maintenance of" flood control systems in the region. The Court of Appeals rejected the nursing home's arguments regarding "non-party fault" (emphasis added below):
Following our de novo review of the proffered and record evidence regarding non-party fault, we cannot say that but-for the conduct of the Corps of Engineers, Ms. Robinette would not have died from heat stroke on the second floor of Lafon five days after the City of New Orleans had issued a mandatory evacuation order.
The record shows that flooding at Lafon was not the cause-in-fact of Ms. Robinette's death. Only one foot of water entered the building, and that water receded quickly. Ms. Robinette was not harmed by the flood water. Ms. Robinette's cause of death was heat stroke and dehydration due to her exposure to sweltering heat for four days. And Ms. Robinette's exposure to those extreme heat conditions was caused by Lafon's refusal to follow its own Evacuation Plan, and by the inadequacy of Lafon's backup emergency power generator. But for Lafon's substandard conduct, Ms. Robinette would not have succumbed to heat stroke caused by the lack of electrical power.
Because the Corps of Engineers' conduct was not the cause-in-fact of Ms. Robinette's death, we find no fault by the Corps.
Wednesday, September 13, 2017
A couple of years ago, I was present when my father's dementia care facility -- a licensed assisted living community -- was doing a test of part of their emergency preparedness plan. The staged "emergency" for that particular test was "loss of air-conditioning," which for most of the year in Arizona and other locations in the south and southwest is a serious concern. With climate change, heat and air-conditioning systems are going to be even more critical in the future.
I was impressed that even without back-up generators, the facility had both a short-term and long-range plan. The long-term plan required staged evacuation to other locations. Of course, to be effective, any evacuation would depend on the "other" locations having working power systems, something that can't be certain in a large scale weather or similar emergency.
Sadly, as reported in the New York Times on September 13, following the damage caused by Hurricane Irma, there were several deaths at a long-term care facility near the coast in southeastern Florida. The rapidly developing story suggests that as many as eight deaths were tied to loss of air-conditioning, although not a complete loss of power to the facility. It is too early to know all of the relevant facts. But, what about the law? The NYT article notes that:
Florida requires nursing homes to have procedures to ensure emergency power in a disaster as well as food, water, staffing and 72 hours of supplies. A new federal rule, which comes into effect in November, adds that whatever the alternative source of energy is, it must be capable of maintaining temperatures that protect residents’ health and safety.
Does the federal regulation mandate emergency sources of air-conditioning? Although the highlighted language in the NYT article suggests the new federal rule "comes into effect" in November of this year, my read of the regulation says the effective date was November 15, 2016 -- in other words, last year.
9/14/17 Correction to above paragraph: It was bothering me that I saw more than one news article describing the Emergency Preparedness rule as not taking effect until November of this year. The "effective date" of the Rule is clearly November 15, 2016 -- but, the New York Times is correct -- Long Term Care facilities have "until" November 15, 2017 to "implement" their preparedness plans, including any plan for maintaining safe temperatures. The implementation deadline was in a previous version of the rule, not the version of the rule actually made "effective" on November 15, 2016. Another lesson for me in the need for careful reading of regulations!
Perhaps more importantly, here's the language of the federal regulation, at 42 C.F.R Section 483.73, governing emergency preparedness at LTC facilities:
The LTC facility must develop and implement emergency preparedness policies and procedures, based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, and the communication plan at paragraph (c) of this section. The policies and procedures must be reviewed and updated at least annually. At a minimum, the policies and procedures must address the following:
(1) The provision of subsistence needs for staff and residents, whether they evacuate or shelter in place, include, but are not limited to the following:(i) Food, water, medical, and pharmaceutical supplies.(ii) Alternate sources of energy to maintain—
(A) Temperatures to protect resident health and safety and for the safe and sanitary storage of provisions;(B) Emergency lighting;(C) Fire detection, extinguishing, and alarm systems; and(D) Sewage and waste disposal.
Tuesday, September 12, 2017
With Irma in Florida's rear view mirror (and not a moment too soon), many are focused on what, if anything, should be done differently next time.
For us as attorneys, we should be sure to tell our clients about the importance of having a disaster plan. For clients living elsewhere, whether a long-term care facility or housing specifically for elders, they should be advised to ask a lot of questions. Does the facility have a disaster plan? Get a copy of it. What services does the facility provide to help residents evacuate? In what evacuation zone is the facility located? Does the facility have a back-up generator in the event of a power outage? How does the facility balance having adequate staff on site before, during and after the disaster while simultaneously allowing staff to prepare for the disaster? Does the facility's insurance policy cover property of residents? What services does the facility provide to help residents return after the disaster? What happens if the facility is now uninhabitable? Does the admissions contract provide for any return of the resident's money (this may be more applicable to a CCRC than a SNF or apartment). Will the facility help residents find other suitable housing? What other items would you add to the list?
As part of the news coverage surrounding Irma, the Washington Post ran a story about the risks of evacuating elders. Moving Florida’s many seniors out of Irma’s path has unique risks discusses the research that has been done on the stress of evacuations on elders, noting that some evacuees will die from the stress of evacuation. Whether to go or stay is akin to rolling the dice. On the one hand, those in the path have plenty of advance notice of the approaching storm, but as seen with Irma, the track can (and does) change, so no one knows where it will hit.
If you stay you have risks. If you go, you have risks. As one person quoted in the Washington Post article noted, "[t]his is one of those classic cases of damned if you do, damned if you don’t. It’s a very difficult decision: When you evacuate, there is an inherent body count for frail, older adults...” Because these folks are frail, they need to be evacuated earlier than others might, and based on lessons learned from Andrew and Katrina, there may be more pressure from officials for facilities to evacuate their residents rather than to stay put to weather the storm. Speaking from personal experience, the wait is stressful. It seems to take a long time for the storm to pass over once the go-no go time has passed. Then afterwards, there's the issue of utilities, clean up, services and supplies.
The media aren't the only ones focused on the issues of elders in the path of disasters. The Senate Committee on Aging has scheduled a hearing for September 20, 2017 at 9:00 a.m. on "Disaster Preparedness and Response: The Special Needs of Older Americans"
We often write on this Blog about concerns or even scandals in "nursing home" care for seniors. But, increasingly senior care spans a wide spectrum of formats and identities, and the SNFs of old, both good and bad, are increasingly outnumbered by newer names. "Assisted Living" facilities -- traditionally positioned somewhere between skilled care and independent living -- are now often the target of concerns and lawsuits.
Reading the complaint in the latest suit, a class action filed in federal court in July 2017 in California against Brookdale Senior Living Inc. and Brookdale Senior Living Communities, Inc., I can see a central frustration, regardless of any issue of poor or negligent care. Brookdale is one of the largest, if not the largest providers of assisted living, especially after it acquired another large assisted living operator, Emeritus. The named individual plaintiffs, who describe their extensive impairments, including physical and mental disabilities, also describe their expectations about receiving appropriate care in "assisted living" at an affordable rate. They allege, for example:
Assisted Living facilities are intended to provide a level of care appropriate for those who are unable to live by themselves but who do not have medical conditions requiring more extensive nursing care.
In recent years, [Defendant] has increasingly been accepting and retaining more residents with conditions and care needs that were once handled almost exclusively in skilled nursing facilities. This has allowed [Defendant] to increase not only the potential resident pool but also the amounts of money charged to residents and/or their family members.
The plaintiffs complain that rates charged, alleged to range between "approximately $4,000 to $10,000 per person per month," increased at a rate of 6% to 7% percent per year in each of the last two years, at the same time that staffing levels dropped to a critical, allegedly unsafe level.
At the core of the complaint is the frustration that residents are not being provided the services they need. The legal theories include violation of the Americans with Disabilities Act, state civil rights and consumer protection laws, unfair trade practices laws, and California's Elder Financial Abuse laws, all leading to what I see as a fundamental question:
Can Assisted Living operators be held liable for failure to provide skilled care to residents they allegedly "know" need such care, or is the less-than-skilled label and license to operate a defense against such liability?
The Brookdale defendants deny the allegations of fault. For more, see Largest Assisted Living Chain in U.S. Sued for Poor Care of Elderly from California Healthline.
Monday, September 11, 2017
Sitting at home watching the storm tracker, and being right in the path of Irma, I wondered what efforts are being taken to protect Florida's elders, so we don't see a picture similar to that we saw from Harvey. I'm not the only one wondering about this. The New York Times ran an article the day before Irma made landfall on the continental US. Long a Refuge for the Elderly, Florida is Now a Place of Danger describes the demographics, 20% of South Florida's residents are over 65 and in some counties, a significant number are over 75. The numbers, as well as the variations in health, makes evacuation and care for this part of Florida's population especially challenging when a hurricane arrives. Add to that the fact that many elders who retire to Florida don't have support of friends or family in Florida. Not every elder will evacuate and don't forget that the caregivers need to take care of their own homes and families at some point. As well, first responders notice everyone that once winds reach a certain speed, they will not respond to calls for help. Then once the storm passes, getting services and utilities restored becomes another challenge. For some, delays in having power can be life-threatening. Stay tuned and wish all of us down here well.
Monday, August 28, 2017
The Consumer Financial Protection Bureau has released three resources on reverse mortgages:
1. https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201708_cfpb_costs-and-risks-of-using-reverse-mortgage-to-delay-collecting-ss.pdf on using a reverse mortgage to delay taking SSA retirement. The issue brief, The costs and risks of using a reverse mortgage to delay collecting Social Security runs 27 pages and is downloadable as a pdf. As the conclusion explains
We find that borrowing a reverse mortgage loan to get an increased Social Security benefit carries significant costs that generally exceed the additional lifetime amount gained from delaying Social Security. In addition, the amount that a consumer will need to borrow from a reverse mortgage loan to delay claiming Social Security benefits could negatively affect the consumer’s ability to move or use their home equity to meet a large expense later in life.
For consumers who have the option, working past age 62 is usually a less costly way to increase their monthly Social Security benefit than borrowing from a reverse mortgage.40 The extra years of work often provide people more time to save for retirement and pay off debts. The extra years of work may also result in an increase in Social Security benefits—separate from the increase that arises from deferring the start of benefits—by replacing years with low or no earnings from the person’s earnings record.41 Consumers may also consider other options to increase their Social Security benefit, such as coordinating their claiming decision with their spouses.
As consumers consider borrowing a reverse mortgage loan in order to delay claiming Social Security benefits or defer withdrawing funds from retirement savings, it is important for them to be aware of the risks and costs associated with this strategy. This is especially true for consumers whose primary source of income is Social Security and whose main asset is their home. For those consumers, the costs of a reverse mortgage loan will likely exceed the lifetime amount of money gained from an increased Social Security benefit, which in turn may threaten their financial security later in life.
The second resource is a discussion guide on reverse mortgages a twenty-four page pdf that provides "an overview of many key concepts of reverse mortgages." The guide is organized by the requirements for a reverse mortgage and includes illustrations and graphics for each. This is a very helpful tool!
The agency's blog also discusses this new resources. Add these to your collection of resources!
Monday, August 21, 2017
A new publication is available from the National Academies Press. Developing Affordable and Accessible Community-Based Housing for Vulnerable Adults: PROCEEDINGS OF A WORKSHOP is available for download as a pdf or for purchase as a print copy. Here is an excerpt from the introduction
Accessible and affordable housing can enable community living,2 maximize independence, and promote health for vulnerable populations. However, the United States faces a shortage of affordable and accessible housing for vulnerable low-income older adults and individuals living with disabilities. This shortage is expected to grow over the coming years given the population shifts leading to greater numbers of older adults and of individuals living with disabilities.
Housing is a social determinant of health and has direct effects on health outcomes, but this relationship has not been thoroughly investigated. To better understand the importance of affordable and accessible housing for older adults and people with disabilities, the barriers to providing this housing, the design principles for making housing accessible for these individuals, and the features of programs and policies that successfully provide affordable and accessible housing that supports community living for older adults and people with disabilities ....
The forum meets to discuss how to support independence and community living for people with disabilities and older adults. The roundtable promotes health equity and the elimination of health disparities by advancing the visibility and understanding of the inequities in health and health care among racial and ethnic populations; by amplifying research, policy, and community-centered programs; and by catalyzing the emergence of new leaders, partners, and stakeholders.
The book runs 108 pages and the pdf is a free download.
Thursday, August 10, 2017
The GAO has issued a report that examines various federal programs for low-income individuals. Federal Low-Income Programs: Eligibility and Benefits Differ for Selected Programs Due to Complex and Varied Rules offers the following findings
Six key federally funded programs for low-income people vary significantly with regard to who is eligible, how income is counted and the maximum income applicants may have to be eligible, and the benefits provided. In fiscal year 2015, the most current data available, the federal government spent nearly $540 billion on benefits for these six programs—the Earned Income Tax Credit (EITC), Medicaid, the Housing Choice Voucher program, Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). The target population for each of these programs differs, for example, people who are elderly or disabled or who have dependent children. Further, some programs have conditions for continued eligibility, such as participation in work activities under TANF. The six programs also vary in what income is and is not counted when determining an applicant's eligibility. For example, certain programs, such as SNAP, disregard a portion of earned income, while others do not. The maximum amount of income an applicant may have and still be eligible for benefits, which is determined for some programs at the federal level and for others at the state or local level, also differs significantly. As of December 2016, this amount ranged from $5,359 per month for one state's Medicaid program to $0 per month in one state for TANF cash assistance, for a single parent with two children. Benefit levels also differed across the six selected programs, with average monthly benefits for these programs ranging in fiscal year 2015 from $258 for SNAP to $626 for Housing Choice Vouchers, and four of the six programs adjust benefits annually.Legal, administrative, and financial constraints pose challenges to efforts to streamline varying eligibility rules for federal low-income programs, according to GAO's current and previous work. A key challenge is that the programs are authorized by different federal statutes enacted at different times in response to differing circumstances. Other laws, such as appropriations laws, can also have an impact on federal programs and their rules. As a result, streamlining eligibility rules would require changing many laws and coordination among a broad set of lawmakers and congressional committees. A further challenge is that a different federal agency or office administers each program GAO reviewed. For some of these programs, such as TANF, state governments also establish some program rules, making it more difficult to streamline rules at the federal level within or across these programs. Finally, financial constraints may also affect efforts to streamline program rules. For example, if rule changes raise the income eligibility limit in a program, more people may become eligible and that program's costs may increase. Despite these challenges, Congress, federal agencies, and states have taken some steps to streamline program administration and rules, such as by making greater use of data-sharing where permitted by federal law and aligning programs' applications and eligibility determination processes. For example, SSI recipients in most states are automatically eligible for Medicaid, and GAO previously reported that some states have integrated the SNAP eligibility process with other low-income programs, such as through combined applications and common eligibility workers.
Wednesday, August 9, 2017
The Washington Post carried a recent story by Samantha Schmidt on the tragedy that befell the Tarnowski family in Minnesota when Mary, age 78, and Ron, age 81, somehow wound up stranded with their car on a remote rural trail. Sadly, they both perished, with heat and dehydration likely factors in their deaths.
One element of the story has attracted a lot of reader attention -- the report that Ron Tarnowski, who had been his wife's primary caregiver for more than 35 years, was "showing signs of early-stage dementia" in recent years. Implications from this label raise questions for many.
From the article, a facebook page, and the obituary, it is apparent that the couple's two sons were very caring and attentive. One son had built them a home "adjacent to his own so he could keep an eye on them." That son's wife had given his mother a bath and cooked breakfast for the couple earlier on the day they went missing, and the fact that they were missing was reported the very same day. Despite the sons' attentiveness, and the all-out efforts of authorities and volunteers to locate the missing couple, the search lasted eight days.
I read with interest the comments to the story posted on-line at the Washington Post website. I expected there would be "flamers" and shaming, so typical of many on-line comment websites. But for the most part, the readers showed kindness and empathy, especially as they told their own stories of struggles to balance protection with respect, attempting to preserve autonomy of beloved family members who are aging.
Significantly, many readers addressed the potential for modern technology in the form of automated trackers on cars and cell phones to help avoid, if not completely prevent such a tragedy.
Friday, July 21, 2017
In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.
The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled. If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."
The parents and the son were all, as stipulated to the court, residents of New Jersey. New Jersey public funding paid from the son's specialized care needs at Melmark's Pennsylvania facility for some 11 years. However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement. Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.
Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances." The courts rejected application of Pennsylvania's law as controlling.
This is a tough case, with hard-line positions on the law staked out by both sides. One cannot expect facilities to provide quality care for free. On the other side, one can empathize with families who face limited local care choices and huge costs.
Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own. Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.
July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, July 18, 2017
I read this article last week in the New York Times (also published by the Kaiser Health News), the topic of which is something we should consider seriously. Poor Patient Care at Many Nursing Homes Despite Stricter Oversight discusses Medicare's Special Focus status.
While special focus status is one of the federal government’s strictest forms of oversight, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to an analysis of federal health inspection data. Of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.
The article highlights some individuals' experiences, with the basis of the article concerning the Special Focus program.
Special focus facility status is reserved for the poorest-performing facilities out of more than 15,000 skilled nursing homes. The Centers for Medicare and Medicaid Services, or C.M.S., assign each state a set number of slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.
More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, because of federal budget cuts. This year, the $2.6 million budget allows only 88 nursing homes to receive the designation, though regulators identified 435 as warranting scrutiny.
The article also discusses lapses by those facilities once on the watch list, how a facility earns its way off the watch list and how long it typically takes to do so and the staffing ratios in such facilities.
Background information about the special focus initiative can be found on the CMS website. You can find the list of special focus facilities on CMS website. For example, here is the one published in June of 2017.
Monday, May 1, 2017
I blogged a few days ago about an upcoming hearing for the Senate Committee on Aging. That hearing, on April 27, 2017, concerned the Mental and Physical Effects of Social Isolation and Loneliness. Testimonies from the hearing can be accessed here.
The April 27, 2017 hearing was the first of two parts looking into the issue. As noted in the first hearing
The risks of social isolation and loneliness compare with smoking and alcohol consumption and exceed those associated with physical inactivity and obesity. According to researchers, prolonged isolation is comparable to smoking 15 cigarettes a day. Isolation and loneliness are associated with higher rates of heart disease; weakened immune system; depression and anxiety; dementia, including Alzheimer’s disease; and nursing home admissions.
The next hearing is set for May 10, 2017 and will focus on Aging With Community: Building Connections that Last a Lifetime.
Tuesday, April 25, 2017
The Senate Special Committee on Aging has a hearing scheduled for April 27, 2017 starting at 9:45 a.m. The topic of the hearing: Aging Without Community: The Consequences of Isolation and Loneliness. Four witnesses are scheduled to testify, including two academics and the head of a Council on Aging from Pima County, Arizona. Video of testimony and resources will be posted to the committee's hearings website subsequently. Stay tuned.
Wednesday, April 5, 2017
We all know about housing for elders, whether a CCRC, independent living, age-restricted housing, active adult housing, whatever one calls it. I was interested in this article from Kaiser Health News that discusses older adult children moving into the same housing complex for elders as their parents. Boomerang Seniors: Aging Adults Move To Be Near Mom Or Dad covers how the aging adult kids, whether members of the Boomer or Silent generations, are caring for their elder parents, and doing so by living nearby in the same housing complex.
Caregiving for an older family member is not what it was when first studied and coined as the “sandwich generation,” those people squeezed between aging parents and young children, said Amy Horowitz, a professor of social work at Fordham University in New York City.
“Now it’s the children who are on the verge of retirement or who have retired and are still having responsibility of older parents,” she said. “In New York City, I know somebody whose almost-90-year-old mother is living in the same apartment building. It becomes, how do you balance your own life?”
These very old parent and elder child relationships seem to be increasing, according to the article. It makes sense, when you consider the fastest growing segment of the population is the 85+ group. So with all of us living longer, the reality is that the children are past retirement age and caring for a parent who is in that "old-old" age cohort.
The article profiles some folks who have made this move. One couple profiled "are great-grandparents. Yet they’re among a growing group of seniors with a living parent, which means these 21st-century post-retirement years might well include parental caretaking. Expectations are altered amid the new reality of longer life expectancy and growing numbers of aged Americans." One expert interviewed for the article describes this trend as "aging together". The highlights advantages to such arrangements such as the adult child not having to drive to visit mom.
Sunday, April 2, 2017
Justice in Aging has announced a free webinar, Reverse Mortgage Servicing & Foreclosure: Emerging Issues. The webinar is set for April 19, 2017 at 2 p.m. edt. Here is the webinar description
Reverse mortgages allow older homeowners to age in place by supplementing income, providing funding for repairs or modifications to the home, or other necessary expenses by converting equity in their homes into cash. Recently there has been an uptick in reverse mortgage foreclosures due to property charge defaults and other issues, leading to the displacement of older adults from their homes. Homeowners and their families also face challenges when dealing with the companies that service reverse mortgage loans.
This free webinar, Reverse Mortgage Servicing & Foreclosure: Emerging Issues outlines issues facing reverse mortgage borrowers and offers strategies to address the challenges. This session will highlight recent changes to the Home Equity Conversion Mortgage (HECM) program.
To register, click here.
Wednesday, March 22, 2017
Are you a Parrot Head? (If you don't know what I mean, the answer to the question is no). Whether you are a Parrot Head or not, wouldn't you love to retire to Margaritaville? Now you can! Jimmy Buffet is opening a chain of 55+ communities within the next year or so. Forbes ran a story last week with the exciting news! Jimmy Buffett To Open String Of Margaritaville Retirement Homes By 2018 explains the plan: "[t]he golden years are looking even brighter with news that Jimmy Buffett is planning to open a string of luxurious Margaritaville retirement home communities, the first in Daytona Beach, Florida. Retirees will be able to live in a paradise where the party never stops and 'growing older, but not up' is encouraged. The price tag will start in the low $200s and furnished models are scheduled to open in early 2018 for those '55 and better.'"
So what will we do if we live in Margaritaville? According to the story "[t]his utopia promises retirees exciting recreation, fitness facilities, lap pools, spas, personal beachfront access, unmatched dining and an entertaining nightlife. Minto Communities has 60 years of experience developing award-winning, master-planned communities and building quality homes for over 80,000 families."
You can read more about this project here .
See you there!
PS-have the song stuck in your head yet?