Wednesday, January 21, 2015

Midweek Potpourri: Recent Elder Law Articles from SSRN

Catching up with three new elder law-related articles from SSRN that look very interesting:

"The Universality of Medicaid at Fifty" by University of Kentucky Law Professor Nicole Huberfeld, forthcoming in the Yale Journal of Health Policy Law & Ethics:

"This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The essay then assesses and evaluates Medicaid’s new universality across four dimensions - governance, administration, equity, and eligibility. Each reveals a facet of universality that underscores this new principle’s importance for health care into the future."

"The Troubled State of America's Nursing Homes," by Temple Law's graduate, Albert Moran:

"This paper analyzes nursing home failures in light of the federal regulatory regime that oversees them. Section II provides a framework for the discussion of nursing homes by describing the choices seniors have for their living arrangements. In order to establish context for the current social and legal space inhabited by nursing homes, Section III traces the historical development of the modern nursing homes, with a particular focus on the landmark laws of the 1960s that paved the way for late-twentieth century proliferation of nursing homes. With this background in mind, Section IV explores the federal regulatory regime that governs nursing homes, and Section V details the bodies and mechanisms that enforce federal rules and regulations. Section VI provides evidence and statistics regarding the prevalence of abuse and neglect in nursing homes and argues that these data evidence a troubled regulatory system. Section VII examines the Patient Protection and Affordable Care Act, which has been heralded as the most significant legislation affecting the healthcare industry in decades, and concludes that the law does not contain provisions that will serve to reduce elder abuse and neglect in any significant way. Section VIII offers recommendations to improve nursing home care in light of the foundation provided by PPACA. Section IX discusses potential blowback that these and other solutions may present and urges reformers to proceed carefully and thoughtfully before enacting any proposed reform."

"Probate Law Meets the Digital Age," by George Washington Law Professor Naomi Cahn, for the Vanderbilt Law Review:

"This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act ('SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account."

January 21, 2015 in Estates and Trusts, Health Care/Long Term Care, Housing, Medicare | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

Should Residents of "Personal Care" Homes Have Rights to Appeal an Involuntary Discharge?

A 90-year-old resident apparently wanted "out" of her personal care home in Pennsylvania -- but being kicked out probably wasn't the outcome her family wanted to see for their restless matriarch.  The personal care home issued a discharge notice on safety grounds, due to her "continued exit-seeking from the building." 

On January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled that a core right recognized in state and federal law for residents of "long-term care nursing facilities" -- the right to seek third-party review when the resident or family disagree with a facility's involuntary discharge or transfer decision -- does not apply to "personal care homes" under the state licensing and regulatory system.  See Bouman v. Department of Public Welfare, Case No. 1262 C.D. 2014, decided November 14, 2014. 

Perhaps a new facility was the best decision, but at age 90, the woman's options for settling into a new place may be very limited.  The short opinion does not reveal whether other approaches, including behavioral "distraction" techniques that often are effective for those with dementia, were explored.  And without an appeal right, families may have no effective way of advocating for those approaches.

Continue reading

January 14, 2015 in Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Michigan Adopts New "Continuing Care Community Disclosure Act"

Michigan Governor Rick Snyder signed Michigan Senate Bill 886 and related bills (SB 887, 888 and 889) into law on December 30, 2014.  The new law is described as "an ongoing effort to continue to support consumer choice and protection while encouraging continued investments into vital care facilities" in the state of Michigan, focusing on continuing care retirement (CCRCs) and life care communities.

The law, titled the Continuing Care Community Disclosure Act, would appear to replace prior law, and thus it will be important to sit down with the new provisions and examine them carefully, especially given the announced reasons for passage. I'm guessing there might be some trade-offs here, with both consumers and providers having interests at stake. According to press releases, some of the "major" provisions of the new law include:    

  • A limit on amortization of the entrance fee to 1.5 percent for each month of occupancy
  • A requirement for any continuing care community to register with the Department of Licensing and Regulatory Affairs (LARA)
  • Setting a $250 registration fee and a $100 renewal fee
  • Organizations must report if any executive officers or director has been convicted of certain felonies
  • A feasibility study with a business plan must be included in each application
  • Exemptions from promulgated rules governing different types of facilities could be granted if the rules interfere delivery of care or with moving residents between different facilities
  • Regulations on the fees facilities may charge and how refunds are provided to potential and former residents
  • A continuing care community could petition for a guardian if a resident became incapacitated and unable to handle his or her personal or financial affairs

The legislation reportedly had the support of LeadingAge in Michigan.  I'm curious about the background on this new legislation -- perhaps some of our readers know the history and reasons for new laws here? 

January 9, 2015 in Health Care/Long Term Care, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

N.M. Court of Appeals Rejects CCRC's Constitution-Based Claim for Charitable Property Tax Exemption

The New Mexico Court of Appeals recently rejected the claim by El Castillo, a Continuing Care Retirement Community (CCRC), for charitable property tax exemptions. I was particularly interested in this ruling, as I have visited the campus several times over the years, and have come to know many residents, who are some of the most active, socially aware seniors I've encountered. Just trying to keep up with 78-year old friends who are walking, walking, walking (at 7,000 feet) to their meetings can be a challenge.  The campus is very pleasant, quite modestly appointed, and fairly compact -- but perhaps most important of all, it has a terrific location.  I suspect that is a large part of the reason it is on the tax assessor's radar. IMAG0464-1_resizedThe campus is just a few blocks from the heart of beautiful Santa Fe and steps away from Canyon Road's art galleries. 

El Castillo has operated as a CCRC since 1971, with a Type A or "Life Care" structure, where residents age 65 and older pay non-refundable entrance fees, plus monthly service fees, with the expectation that all needs, whether in so-called "independent" apartments, assisted living units or nursing care, are provided on the same campus.  El Castillo is not associated with a particular faith nor with any fraternal organization, but it has operated since its inception under Section 501(c)(3) of the Internal Revenue Code, and thus is exempt from income taxes based on historical rulings that permit charitable tax exemptions for "homes for the aged."  However, as we have discussed in the past in this Blog, a state's standards for charitable property tax exemptions can be quite different than the IRS approach to charitable income tax exemptions. 

State and local governing bodies are constantly in search of tax revenues, and CCRC campuses, especially in urban locations, can be a tempting target.  Under New Mexico's state constitution, at Article VIII, Section 3, "all property used for educational or charitable purposes shall be exempt from taxation." Prior cases interpreting this provision did not require a facility to be operated "exclusively" for charitable purposes, but the landowner has the burden to show it operates "primarily and substantially for a charitable purpose."  

Key to the court's denial of the tax exemption was its observation that El Castillo appeared to operate as a self-sustaining unit funded entirely by fees paid by residents, with little or no "charitable" base.  The Court rejected El Castillo's argument that its charitable mission was to provide life-time care for residents who could (and sometimes do) become personally unable to pay, and that such a mission was only possible through "subsidizing" such residents by, in essence, pooling the fees paid by all residents. As demonstrated by contrasting rulings on property tax exemptions in other states, the financial analysis necessary to support a charitable use property tax exemption may require detailed analysis and advanced planning.  There is a fine line for any nonprofit to balance costs, sources of revenues and the goal of sustainability. In some instances, I have seen denial of property tax exemptions be the final straw for some nonprofit operators, especially those struggling with rising costs or occupancy rates after the 2008 financial downturn.

In New Mexico, there is both a constitutional basis for seeking a property tax exemption and a statutory basis.  The ruling on El Castillo -- which by the way, when translated from Spanish, means "The Castle" (a bit of irony perhaps, given the court's seeming hostility towards the exemption claim, pointing to the lack of "indigent" residents) -- was based only on the state constitution.  It appears the tax assessor actually failed to perfect his attempt to appeal a separate portion of the lower court ruling that had granted El Castillo the right to charitable tax exemptions on statutory grounds. Thus, it would appear that El Castillo would not immediately feel the effects of the Court's ruling, at least not for the specific tax years at issue in the multi-year litigation.   In a footnote, the Court of Appeals judges acknowedged that their decision on El Castillo creates a "dfferent result" than the same court's 2013 ruling on charitable property tax exemptions for a different life-care community, La Vida Llena, in Albuquerque, N.M.  The Court distinguished the La Vida Llena ruling as based only on statutory grounds.

For the complete ruling, including a complex jurisdictional issue, see El Castillo Retirement Residences v. Martinez, Case No. 31, 704, decided December 17, 2014.

January 6, 2015 in Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Going Above and Beyond to Provide Care

Back in November, NPR ran a moving story about two employees of an ALF who stayed to care for residents left behind when the ALF closed, leaving the residents to fend for themselves.  The NPR story, 'If We Left, They Wouldn't Have Nobody' tells how the cook and the janitor stayed to care for the residents, even though the rest of the employees left when they were no longer paid.  The article notes that the story was the catalyst for legislation, "the Residential Care for the Elderly Reform Act of 2014." The audio of the story is available here.

January 6, 2015 in Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

A New Year's Resolution-Livable Communities!

What a great idea--livable communities.  AARP offers a great website on livable communities. The website covers a number of topics including a network of age-friendly communities as well as a toolkit and information to make a home appropriate for aging in place.  Check it out!

January 2, 2015 in Housing | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

College Broadcast Student's Media Project Focuses on Filial Laws

Christopher Robb is in his final year at Westminster College in Pennsylvania and for his senior Media project he tackled "filial laws."  His impressive work included researching the history of such laws and studying recent court cases in Pennsylvania.  He interviewed and filmed a host of individuals from across the state who have experience with recent trends in use of filial support laws by nursing homes to seek payment from adult children for bills not satisfied by the resident's resources, insurance or Medicaid.  Chris Robb's resulting 15 minute video is titled, "Am I My Mother's Keeper?"  Thank you for sharing it with the Elder Law Prof Blog!

 

December 29, 2014 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Friday, December 26, 2014

The Fascinating, Troubling Case of In Re Fundamental Long-Term Care Inc.

I have written before about allegations of "bust out schemes" in long-term care companies The theory is that operators of businesses facing huge obligations, especially obligations arising from court judgments based on negligent care in nursing homes, try to transfer and hide assets to avoid paying the legal damages.  Allegations of this form of fraud are at the heart of a complicated case, In re Fundamental Long-Term Care Inc., pending in the bankruptcy courts of Florida,  focused on operations in that state, but also in Illinois and Maryland.  The allegations are wild, with alleged manipulation of an elderly graphic artist, now himself a resident of a nursing home, to "buy" the shell company that was saddled with $119 million in default judgments arising out of two wrongful death cases dating back to 2003, plus perhaps as many as 150 additional, pending claims. 

What's the latest news on the case, as reported in The Chicago Times and the on-line Insurance Journal

The presiding U.S. Bankruptcy Court judge, Michael Williamson in Tampa, Florida,  has announced a "tentative ruling" that owners of the multistate chain of nursing homes have committed fraud by transferring liabilities to an asset-less shell company, in order to isolate responsibility for more than $2 billion in jury verdicts.  At the same time, the judge apparently indicated he sees no evidence to hold a private equity firm -- and probably the defendant with the deepest pockets -- liable for the fraud commited by the nursing home companies it provided with financing. Apparently the judge's "tentative ruling" is intended to encourage the parties remaining on both sides of the case to be realistic during mediation sessions ordered by the court to take place in January. 

In addition to the extraordinary dollars involved in the alleged fraud, media sources have covered the case closely because Illinois Governor Elect Bruce Rauner was once a manager of an investment firm involved in financing for the nursing home chain.   Governor-to-Be Rauner has not been a defendant in the liability cases, and has strongly denied any knowledge or responsibility for the alleged fraud.

The case is In re Fundamental Long-Term Care Inc., 11-bk-22258, 13-ap-00893, U.S. Bankruptcy Court, Middle District of Florida.

December 26, 2014 in Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

Monday, December 22, 2014

The Need for Granny Pads vs. "Parochial" Land Use Concerns

The amazing things you find when you start cleaning your office!  Here's a find.  Notre Dame Law Professors Margaret Brinig and Nichole Stelle Garnett wrote a great piece for The Urban Lawyer on what are sometimes called "granny pads," or more formally, "accessory dwelling units."  The authors track reform measures enacted in at least 12 states that either enable or mandate authority for such units, thus preventing local building or zoning limitations from restricting landowners to "one unit" per lot.  Additional reforms have occured at some municipal levels.  They point to experiences in California as a cautionary tale, however, suggesting that "local parochialism remains alive and well in American zoning codes, often buried in regulatory details that escape the attention of advocates and academics alike."

Here's a link to the full article, "A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism."    I'm embarrassed to admit this particular journal issue was on the 2013 level of my cleaning efforts.  Who knows what other gems may be hiding!

December 22, 2014 in Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, November 30, 2014

Justice Department Reaches $437,500 Agreement with City of Ocean Springs, MS to Resolve Disability Discrimination Lawsuit

The Justice Department announced a comprehensive settlement today, resolving a federal civil rights lawsuit against the City of Ocean Springs, Mississippi, for alleged violations of the Americans with Disabilities Act (ADA). Under the proposed consent decree, the City will pay $437,500 in damages to a psychiatric treatment facility that was discriminated against by the City. The decree also requires systemic reforms to the City's land use and zoning practices to eliminate barriers for providers of mental health services to people with disabilities and combat the stigma of mental illness. The complaint, also filed in federal court today, alleges that the City discriminated against Psycamore, LLC, an outpatient psychiatric treatment facility, when it denied a certificate of occupancy and a use permit because Psycamore treats patients with mental illness.

Read the settlement agreement.

November 30, 2014 in Discrimination, Federal Cases, Federal Statutes/Regulations, Housing | Permalink | TrackBack (0)

Thursday, November 27, 2014

The "Aging" Art of Communication - A Holiday Topic?

Recently I have encountered several thoughtful articles about the language we use, and the approaches taken, when talking with older persons.  This seems to be an especially appropriate topic for the holiday season, when families often come together, sometimes from great distances. Whether we are talking with clients or family members, some of the same dynamics may be in play, especially when the question is about planning for the future.

From the ABA Commission on Law and Aging's Bifocal publication, comes David Solie's "The Wrong Signals: Shutting Down the Planning Conversation Before It Starts."  He encourages us to "consider the psychological landscape of older clients -- it is a world embedded with two dominant agendas posing significant resistance to change. Together, these psychological currents create a deep inertia to disrupting the status quo."  He labels these barriers to change as:

  • Ambivalence and the "Righting Reflex," and
  • The Need for Control

He suggests approaches, including the use of open-ended questions, reflective listening, and making a conscious decision about what words to use.  For example, he suggests that when we start to discussion options, we explain more clearly that advance planning helps to "preserve choice" and avoids "loss of control."   

Another potential problem may arise from "Elderspeak," a label social scientists use to refer to a tendency to use "patronizing" tones or words when speaking to anyone who is older.  One recent article in McKnight's News made me chuckle, as it points to the well-meaning but potentially misguided use of words such as ""honey" by professionals when working with elders. 

My father, a federal judge for more than 30 years, at age 89 may have forgotten many things -- but he does not take kindly to being called "honey" by strangers.  He now has an entire assisted living campus, even a few of the other residents, calling him "Judge" or "Your Honor." I bet you might know a judge or two like that?  When it comes to control, I'm not sure who is teaching whom about  holding court.  

Here's to more humor in all of our holidays -- and more opportunities for effective communication -- both within the family and beyond.  Happy Thanksgiving!

November 27, 2014 in Cognitive Impairment, Ethical Issues, Housing, Retirement, Science | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Factors to Consider In Determining Whether to Preserve Elder's Interest in Primary Residence

New Jersey Elder Law Attorney Linda Ershow-Levenberg outlines factual and legal issues to consider in deciding how to handle the family residence in a recent article for Experience, the ABA publication for the Senior Lawyers Division.  She warns that the "real trick is balancing [the clients'] financial security against the hopes of their heirs."

She begins by urging lawyers to resist a simplistic inquiry or "one size fits all" approach to elder law planning, stressing that lawyers should consider the impact of a proposed real estate conveyance on:

  • the elder's right to remain in the home;
  • a Medicaid application for either at-home or institutional services;
  • the income taxes of both transferor and transferee;
  • the elder’s financial and physical ability to remain in the home;
  • the elder’s estate plan; and
  • present and future liens and mortgages.

She observes that frequently an elder's "plan" to divide property equally among children or other heirs conflicts with the way in which property is already titled, noting that sometimes the choice of  co-owners or death beneficiaries was intentional.  "As often as not, however, the elder simply did not understand that beneficiary designations such as 'POD' (pay on death) or 'ITF (in trust for) control the disposition of an asset despite contrary instructions in the will."  Additional complicated and conclusive presumptions may exist, arising from the form of title for real property, that also may conflict with a will, thus triggering expensive challenges that could have been avoided with more comprehensive understanding of the client's estate.   

The article appears to be written for non-specialist lawyers, who are often asked to do "simple" estate planning that, in the wrong hands, can result in anything-but-simple outcomes for the family. 

Here's the link for more on "Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning."

The theme of this issue of Experience is "Real Estate Issues Affecting the Elderly," and the issue includes discussion of the pitfalls of reverse mortgages, income tax liability connected to foreclosures, and "unique" property rights issues for seniors in Western states, including water rights.

November 25, 2014 in Estates and Trusts, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

PA Supreme Court's Elder Law Task Force Issues "Bold" Recommendations

On November 17,  2014, following more than a year of study  and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law.  With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect.  The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts. Pennsylvania Supreme Court Elder Law Task Force 2014 

From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:

  • Recommending the state's so-called "Slayer"  law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
  • Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
  • Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.

The full report is available on the Pennsylvania Supreme Court website here.  As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott. 

November 17, 2014 in Consumer Information, Crimes, Current Affairs, Housing, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2014

NYT: Calling for "Silver" (Higher) Standards in Architecture and Design

Dr. Louise Aronson, a clinical professor in Geriatrics at University of California San Francisco, wrote a great piece in the New York Times recently, calling for a "silver" standard for architecture and design, to better meet the needs of older adults in public and private accommodations, while also making life easier and safer for everyone.  She explains:

"I unloaded the walker and led my 82-year-old father through the sliding glass doors. Inside, there was a single bench made of recycled materials. I noticed it didn’t have the arm supports that a frail elderly person requires to safely sit down and get back up. It was a long trek to the right clinic and I was double-parked outside. Helping my father onto the bench, I said, “Wait here,” and hoped he would remember to do so long enough for me to park and return.

 

He nodded. We were used to this. It happened almost everywhere we went: at restaurants, the bank, the airport, department stores. Many of these places — our historic city hall, with its wide steps and renovated dome, the futuristic movie theater and the new clinic — were gorgeous.

 

The problem was that not one of them was set up to facilitate access by someone like my father."

The irony was that the medical center building Dr. Aronson was writing about was brand new and renowned for its "green" design.  Nonetheless, it was failing to meet the practical needs of its many silver-haired clients. 

For more on how a revolution -- and incentives -- are needed to better meet the needs of an aging world, see "New Buildings for Older People."   

November 6, 2014 in Consumer Information, Discrimination, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

Lillian Hyatt and the Importance of Advocacy -- Even In Your 80s

 

While I was in California last summer, a friend introduced me to Lillian Hyatt.  I had already known of her by reputation and it was a real pleasure to speak to her in person and to continue our communications by telephone and mail. She's a dynamo, a person who does not take aging "lying down."  Born in 1925 (believe me, she doesn't mind me disclosing that fact!), Lillian Hyatt is just about as active in "retirement" as she was during her many years as a writer, consultant, advocate, social worker, and university professor. 

So I was especially interested to notice that when I clicked on a hyperlink embedded in a recent New York Times article about the impact of "falling" in an "aging nation," it took me to  a press release about Lillian Hyatt.  Back in 2008, Ms. Hyatt filed suit against a California Continuing Care Retirement Community (CCRC), to prevent it from banning walkers from the dining room of this high-end retirement community.   She needed the walker to maneuver in what was, in essence, her home. 

The lawsuit, asserting violation of the federal Fair Housing Act and other state and federal laws that address discrimination based on disability, was settled in 2010.  Others have pursued similar claims in assisted living settings, public spaces and more.  For more on the continuing impact of Ms. Hyatt's advocacy -- even though, curiously, she is never mentioned by name in the NYT article -- read "Bracing for the Falls of an Aging Nation."  Advocates such as Ms. Hyatt challenge all of us to work harder to find a better balance between protection and respect for independence.

November 3, 2014 in Consumer Information, Current Affairs, Housing, Retirement | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2014

Non-Profit versus For-Profit Long-Term Care Providers: Does It Make a Difference?

LeadingAge is an organization representing "nonprofit" long-term care providers, including operators of CCRCs, home health agencies, day-care centers, nursing homes, Section 8 public housing, and similar companies.  During the recent national meeting of LeadingAge in Nashville, one topic was an "alarming trend" in the growth of the for-profit long-term care sector.  As reported in McKnight's,  during the conference LeadingAge Chairman David Gehm warned the audience that the for-profit sector is "growing nearly eight times as fast as the nonprofoit sector ... citing figures from investment bank Ziegler."  Gehm is reported as pointing to reduced access to affordable capital as as one factor contributing to the pressures on the nonprofit industry.  He argued a "vibrant nonprofit long-term care sector benefits the whole country."  

On the consumer-cost side of the equation, it does seem that what was once a price differential between the two sectors for cost of care is narrowing.  Nonetheless, historically there has been a certain additional trustw0rthiness factor associated with monprofit providers that often gave them an edge in the marketplace. But is that still true? 

As my students in my Nonprofit Organizations class come to realize, there is often a difference between "charitable" care and "nonprofit" care.  But is the difference between nonprofit care and for-profit care becoming harder to evaluate? 

October 29, 2014 in Consumer Information, Health Care/Long Term Care, Housing | Permalink | Comments (1) | TrackBack (0)

Monday, October 27, 2014

Debating Fiduciary Duties and Resident Rights in Continuing Care Communities

Last week I was part of a panel hosted by the National Continuing Care Residents' Association (NaCCRA) in Nashville, a component of the larger (much larger!) annual meeting of LeadingAge.  The theme for the panel was "Resident Engagement in Continuing Care Life" and for my part of the panel, I used an interesting Third Circuit bankruptcy court decision, In re Lemington Home for the Aged, to discuss whether residents of financially troubled CCRCs should be treated as entitled to enforce specific fiduciary duties owed by the CCRC owners to creditors generally, even unsecured creditors, fiduciary duties that may give rise to a direct cause of action connected to "deepening insolvency."  NaCCRA LeadingAge Meeting October 2014

Jennifer Young (pictured on the left), a CCRC resident, talked about what it is like to "be" an unsecured creditor in a CCRC's Chapter 11 bankruptcy court proceeding.  Her explanation of how creditors' committees operate in bankruptcy court (including how they hire legal counsel and how that counsel is paid out of the Debtor's estate) was both practical and illuminating.  The closing speaker on the panel was Jack Cumming (below left). Jack's has deep experience as an actuary and a CCRC resident.  He noted the disconnect between the intentions of providers and the realities faced by residents and called for stronger accountability in investment of resident fees.Jack Cumming October 2014  I always come away from my time with Jack with lots to think about. Our moderator was NaCCRA president Daniel Seeger (right), from Pennswood Village in Pennsylvania.  Dan Seeger October 2014

In my final comments, I reminded our audience that even though our panel was focusing on "problems" with certain CCRC operations, including some multi-site facilities, many (indeed most) CCRCs are on sound financial footing, especially as occupancy numbers rebound in several regions of the country.  Both panelists and audience members emphasized, however, that for CCRCs to be able to attract new residents, the responsibility of the CCRC industry must improve.  For more on these financial points, go to NaCCRA's great educational website, that includes both text and videos, here.

Interestingly, during the LeadingAge programming that began on Saturday, October 18 and continued through October 22, I was hearing a lot about a potentially major shift in the long-term housing and service market.  Some of the largest attendance was for deep-dive sessions on new service models for "Continuing Care at Home," sometimes shortened to CCAH or CCaH.  CCAH is often seen as a way for more traditional CCRCs to broaden their client base, particularly in the face of occupancy challenges that began with the financial crisis of 2008-2010.  

As a corollary of this observation about market change, one of the topics under debate within the leadership of LeadingAge is whether Continuing Care Retirement Communities need a new name, and I can see movement to adopt a name that aligns better with the larger menu of non-facility based services that many providers are seeking to offer. 

Of course, as a law professor, I wonder what these market changes mean for oversight or regulation of new models.  Not all states are keeping up with the changes in the Continuing Care industry, and name changes may complicate or obscure the most important regulatory questions.       

October 27, 2014 in Current Affairs, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2014

Alberta care homes fight to prevent release of financial reports

Via the Calgary Herald:


A continuing care operator is fighting a recent ruling by Alberta’s information czar that would reveal how hundreds of millions in taxpayer dollars are spent each year at the province’s nursing homes and supportive living facilities.  A continuing care operator is fighting a recent ruling by Alberta’s information czar that would reveal how hundreds of millions in taxpayer dollars are spent each year at the province’s nursing homes and supportive living facilities.  Shepherd’s Care Foundation is asking the courts to overturn a decision by the Office of the Information and Privacy Commissioner ordering the release of the complete annual financial returns it and other operators file with Alberta’s health authority.  In a notice seeking judicial review, the Edmonton-based organization says making the returns public under the province’s freedom of information legislation would cause significant harm to its business and labour relations interests.  Filed as a condition of the facility’s contract with Alberta Health Services, the returns show the amounts a facility derives each year from the public purse and from resident fees.  The document also details how much of that money is spent on care, food and administration and whether any surplus or profit is left over at the end of 12 months.  The OIPC ruling stems from requests filed with AHS by the Alberta Union of Provincial Employees several years ago for the returns of 15 continuing care operators with which it was involved in collective bargaining on behalf of workers.

Read more here.

October 21, 2014 in Consumer Information, Housing, International | Permalink | TrackBack (0)

Monday, October 20, 2014

Improvements Coming to Nursing Home Compare

Earlier this month, CMS announced that it was going to update and improve the Nursing Home Compare site, which should result in more accurate information available for consumers. According to the October 6, 2014 press release, "the expansion and strengthening of the agency’s widely-used Five Star Quality Rating System for Nursing Homes will improve consumer information about individual nursing homes’ quality."

Starting in January, "CMS and states will implement focused survey inspections nationwide for a sample of nursing homes to enable better verification of both the staffing and quality measure information that is part of the Five-Star Quality Rating System." CMS is also adding to the quality measures used. Also CMS will be doing some "focused survey inspections" for verification purposes  of the information that is being submitted.

According to the Center for Medicare Advocacy October 16, 2014 weekly alert, a new law, "[t]he Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act of 2014) ... supports one of the key changes –providing funding to implement a provision of the Affordable Care Act (ACA) that requires nursing home staffing data reported on Nursing Home Compare to be electronically-submitted and "based on payroll and other verifiable and auditable data."

Check it out!

October 20, 2014 in Consumer Information, Health Care/Long Term Care, Housing, Medicare | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

NSCLC Hosts Webinar on "Assisted Living State by State"

Our friends at National Senior Citizens Law Center, in cooperation with the Assisted Living Consumer Alliance, are hosting a free webinar on Wednesday, October 22 on "Assisted Living State by State."

The program will offer several perspectives on regulatory systems that may affect the range of care options that are not defined as "skilled care."  The program will use California has part of the focus, while explaining what regulations are already in use and whether improvements are needed across the nation.

Here's additional information the link for registration for this free, hour-long program.   

October 13, 2014 in Housing, Webinars | Permalink | Comments (0) | TrackBack (0)