Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.
Thursday, May 26, 2016
Senior residential care provider Life Care Centers of America is the focus of recent legal news, including:
- KOAA TV 5 News: Colorado Jury Awards $5.5 million in wrongful death suit against Life Care Center of Pueblo.
- Chattanooga Times Free Press: Settlement May be Brewing in Government's Longtime Federal Case alleging False Claims - Billing Practices by Life Care Centers of America
Plaintiffs' Class Certified in Dispute over LTC Insurance Coverage for Care by "Managed Residential Communities" or "Assisted Living Services Agencies"
As we've reported fairly often on this Blog (see e.g., here, re California litigation), the long-term care insurance (LTCI) industry has been battling disputes on many fronts. One of the fronts is whether insurers can deny benefits to pay for care provided in settings other than "skilled nursing facilities." On March 1, 2016, a federal court in Connecticut granted class certification to estates and policy holders who are challenging denial of coverage for stays in "managed residential communities" (MRCs) in Connecticut or to cover services provided through "assisted living services agencies" (ALSAs). In Estate of Gardner v. Continental Casualty Company, 2016 WL 806823, the court agreed the plaintiffs had satisfied the class certification requirements for "numerosity," commonality, and typicality of issues, as well as establishing grounds to argue "imminence of injury" to support a claim for injunctive relief:
While Plaintiffs do seek monetary relief, it appears to the Court that what they primarily seek is forward-looking relief. Plaintiffs purchased long-term care policies, presumably with the expectation that they would utilize their coverage over a long term. Any adequate remedy would have to ensure that they could obtain coverage for claims prospectively. For that, an injunction is required. Moreover, Plaintiffs leave no ambiguity about the content of the injunction they seek: an end to Defendant's alleged policy of denying claims for assisted-living facilities across the board. This is exactly the type of relief Rule 23(b)(2) was designed to facilitate. Because Plaintiffs' proposed Rule 23(b)(2) class satisfied all of the requirements of Rule 23, certification is proper.
For more on the background of the Connecticut case, see "Connecticut class action accuses insurer of denying assisted-living claims."
Tuesday, May 24, 2016
On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community. In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children." The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.
On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of] 60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.
The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:
Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.
The finding of breach appeared to have been predicated on the contract's specified grounds permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.
Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.
In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers. Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.
Sunday, May 15, 2016
As reported in several financial news services, including McKnight's Long-Term Care News here, HCR ManorCare, owner/operator of a large number of skilled nursing and assisted living properties, is to be spun off by its corporate parent, HCP Inc., into the hands of "an independent real estate investment trust" called, appropriately enough, "SpinCo."
Certainly this seems to be a move to improve the financial position of HCP by separating the nursing home operations from independent living operations; it remains to be seen whether it also allows "troubled" HCR ManorCare to resolve concerns about quality of care and billing practices. The business history of ManorCare, with all of its various partners and name changes, probably serves as a marker for changes throughout the skilled care industry. For ManorCare's own perspective on its history, see "Our History Is Still Being Written."
Friday, May 13, 2016
Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?
My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients. This week the ABA Journal also linked to the AP story, plus tied the statistical reports of a nation-wide increase in complaints about evictions, rejections and discharges to one man's struggle to return to his California care center following what should have been short term hospitalization for pneumonia.
The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals. But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture. Anderson experienced a severe brain injury at age 55 following a heart attack, but his younger age, lack of "private pay resources," and a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.
The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources. Certainly there are many -- and probably too many -- individuals in facilities when they could be maintained at home if there was more funding to supplement family-based care.
At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care. It is about more than mere eviction, discharge and rejection statistics. The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities. But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.
My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.
Tuesday, May 10, 2016
Let's just start by saying the article I'm about to cite is a must-read for us.
The AP did a story on May 8, 2016, Nursing homes turn to eviction to drop difficult patients. The article opens "Nursing homes are increasingly evicting their most challenging residents, advocates for the aged and disabled say, testing protections for some of society's most vulnerable...Those targeted for eviction are frequently poor and suffering from dementia, according to residents' allies. They often put up little fight, their families unsure what to do. Removing them makes room for less labor-intensive and more profitable patients, critics of the tactic say, noting it can be shattering."
The AP did a study of data from the Long-Term Care Ombudsman Program and learned that complaints regarding involuntary discharges have increased by about 57% since 2000. "[Discharge] was the top-reported grievance in 2014, with 11,331 such issues logged by ombudsmen, who work to resolve problems faced by residents of nursing homes, assisted living facilities and other adult-care settings." Why this increase in discharges? The article offers that the involuntary discharge often happens "because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment, advocates say. Federal law spells out rules on acceptable transfers, but the advocates say offending facilities routinely stretch permitted justifications for discharge. Even when families fight a move and win an appeal, some homes have disregarded rulings."
The American Health Care Association offers an opposing view of the discharges, explaining that in some cases it is "lawful and necessary to remove residents who can't be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren't done improperly."
The article also includes examples where a resident is admitted to a hospital and when ready to return to the nursing home, is refused readmission. Several cases are highlighted in the article, with experts from both sides of the issue offering opinions. The article also references staffing levels and the trauma encountered by residents who find themselves in a discharge situation.
Have your students read the applicable federal statute and then this article. I guarantee an interesting discussion.
Monday, April 18, 2016
Arizona State University is considering plans to develop a Continuing Care Retirement Community (CCRC) near its main campus, working with Pacific Retirement Services (based in Oregon) as a co-developer and operator. From the announcement:
ASU is working with the ASU Foundation, who has hired Pacific Retirement Services to co-develop and operate the project. Artistic renderings depict a gleaming a 20-story building with 291 independent, assisted, memory care and skilled nursing units....
ASU is currently in discussion with Mayo Clinic, Osher Lifelong Learning Institute and ASU’s nursing, health, innovation, nutrition, arts and design and teaching programs as potential partners. Other amenities include casual dining, health club, game room, estate planning, concierge service, classroom and intergenerational childcare programming....
ASU is currently conducting a marketing and feasibility study about the facility, which would ground lease approval from the Arizona Board of Regents. If approved, construction could begin in 2018 and begin accepting residents in 2020.
For more, read Arizona State University to Build CCRC on Campus, from Senior Living publication.
My thanks to Karen Miller, J.D., who lives in a successful CCRC affiliated with the University of Florida.
Addendum: After posting the above information about ASU's possible project, I noticed that Arizona State University is a named co-sponsor of what appears to be three-day education and business development forum called the ASU-GSV Summit. Bill Gates is a keynote speaker. What struck me as interesting is the summit, from April 18-20, is being held in California -- San Diego to be exact -- and not in ASU's home state. As someone who grew up in the Valley of the Sun, I've been watching the increasingly entrepreneurial spirit of ASU for some time, and this is more evidence.
Friday, April 15, 2016
The New York Times ran a story recently about a new trend in housing for elders---multigenerational homes. Multigenerational Homes That Fit Just Right are homes that, as the name implies, are designed for multiple generations of a family that live in the same house. "[A] growing number of families ... are seeking specially designed homes that can accommodate aging parents, grown children and even boomerang children under the same roof. The number of Americans living in multigenerational households — defined, generally, as homes with more than one adult generation — rose to 56.8 million in 2012, or about 18.1 percent of the total population, from 46.6 million, or 15.5 percent of the population in 2007, according to the latest data from Pew Research. By comparison, an estimated 28 million, or 12 percent, lived in such households in 1980."
But how does one accommodate family dynamics when living together under one roof? In fact, the story notes, many of the multigenerational households do live in an "ordinary" home. But, it appears that the building industry has developed an option that is catching on, "responding quickly to this shifting demand by creating homes specifically intended for such families." For example, one builder's homes "don’t offer just a spare bedroom suite or a “granny hut” that sits separately on the property or a room above a garage. The NextGen designs provide a separate entranceway, bedroom, living space, bathroom, kitchenette, laundry facilities and, in some cases, even separate temperature controls and separate garages with a lockable entrance to the main house. Family members can live under the same roof and not see one another for days if they so choose."
The article explains the drivers for the trend, baby boomers (of course), the 2008 recession, tough job market and higher rents facing millenials, the boomerang children and again, those baby boomers, "[m]any [of whom] are planning ahead in hopes that they can devote more attention to their children and grandchildren — and spend little, if any, time in a nursing home."
Expect to see more of these multigenerational homes over the next years. From a legal perspective, it seems that ground rules, a family contract and a care would be important to the success of the venture (whose turn is it to cut the grass this week? No loud music after 11 p.m. as a couple of an examples). What an interesting concept of the market changing to accommodate demand.
Monday, March 28, 2016
From the New York Times, courtesy of reader and Bethesda, Maryland Elder Law Attorney Morris Klein, comes a demonstration of just how "clued in" the world of senior living has become. A recent article begins with the background of ShantiNiketan in Florida, and continues with other descriptions of creatively-designed assisted living, nursing facilities and day programs serving ethnic communities around the country, including Chinese-Americans:
Indian immigrants who came to the United States in the 1960s and ’70s for educational and work opportunities have begun to downsize and contemplate their postcareer years, said Iggy Ignatius, 60, ShantiNiketan’s chairman. “Many people were thinking they’d go back to India, but pragmatically it’s not possible,” he said. “Our children are here. Our grandchildren are here.”
In Florida, from the architecture that reminds Dr. Chandran of Chennai, India, to the vegetarian meals and Bollywood dance classes, “we have created a mini-India, a piece of India,” Mr. Ignatius said. The Chandrans moved into their three-bedroom condominium in 2011, paying $250,000, and now they lead yoga classes in ShantiNiketan’s meditation room.
For more, read the always interesting Paula Span's full article, A New Spin on Senior Living.
Thursday, March 24, 2016
Earlier this week, I reported on the Florida Office of Insurance Regulation's actions affecting University Village, a Continuing Care Retirement Community (CCRC) in west Florida. Additional events are now coming to the surface in media reports, including turmoil with employees over salary and benefits:
Workers from the Nursing Center at University Village made a lot of noise walking a picket line, protesting salary caps and reductions in benefits. This labor unrest comes while the new owners of University Village, Westport Holdings of Tampa, struggle to stop the state from yanking their license and shutting them down.
Health care workers represented by the Service Employees International Union are protesting working without a contract since December. Westport Holdings claims through the years the University Village nursing center was overly generous to its employees, and it’s time to reel in costs.
“What do they consider to be generous? I’ve been working with them for over 20 years and I haven’t seen $20 an hour yet,” Scott said.
Management wants to cap salaries and reduce health care benefits. It contends workers at University Village are paid more than employees at other local facilities.
For more, see News Channel 8's report on Employees Protest Benefit Cuts at Embattled Hillsborough Retirement Community.
Sunday, March 20, 2016
On March 16, 2016, the Florida Office of Insurance Regulation issued suspension orders affecting University Village, a Continuing Care Retirement Community (CCRC) in Tampa, Florida. Long-Term Living publication reports:
The first order states the facility was acquired illegally. IMH Healthcare, LLC, the general partner of the new ownership, does not have approval to operate as a licensed CCRC provider.
The second order makes several allegations against University Village for violating provisions of Florida’s Insurance Code for:
failing to comply with the OIR’s target examination and filing false information;
failing to fulfill statutory and contractual obligations to residents, estates of former residents and prospective residents, including failing to pay more than $4 million in refunds owed to residents;
continuing to accept new residents while being financially insolvent; and
engaging in fraudulent or dishonest management practices.
For more on the OIR action, read Tampa Times coverage, "Florida Officials Move to Suspend Tampa's University Village Retirement Home."
The events that led to this state action are somewhat unusual. For earlier reports on the long-simmering issues, see Channel 8 News Report from September 2015: "Owner Claims, State Lying, Retirees Suffer." See also a Tampa Bay Times article from February 2015, "State Looks into Alleged Financial Problems at Tampa Retirement Community."
Friday, March 18, 2016
Does California's New "Revocable Transfer on Death (TOD) Deed" Increase Risk of Elder Abuse and Estate Costs?
Colleagues in California recently shared with me information on California's adoption of statutory recognition of "Transfer on Death Deeds" or TODs under AB 139. The law was signed by the Governor on September 21, 2015 and became effective on January 1, 2016. The law includes "simple" forms, both for establishing the "revocable" transfer of title, and for any "revocation" of such a deed. Proponents of the legislation cite simplicity and low cost as advantages of using such deeds. The legislative history for the law explains:
The bill would provide, among other things, that the deed, during the owner’s life, does not affect his or her ownership rights and, specifically, is part of the owner’s estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owner’s death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
Critics of the law, including California Advocates for Nursing Home Reform (CANHR), warn that despite the "simple" label, the appropriate use of such transfers in estate planning is anything but simple, and such deeds pose another opportunity for undue influence and manipulation of elders.
The spring issue of CANHR's Advocate newsletter (available via subscription, following a "donation" to the organization) further comments:
It is important to note that thousands of California citizens who are 55 years of age or older and who have recently signed up for health care under California's Medic-Cal expansion program will now have their estates subject to Medi-Cal recovery when they die. If their homes were transferred before their deaths, transferred to an irrevocable trust or if they transferred the property and retained an irrevocable life estate (another cheap, but effective way to transfer property) there will be no estate claim on the home. But, because the [new law's] TOD is revocable and the transfer and the transfer of the property under a TOD does not occur until the death of the owner, these TODs are subject to estate recovery, which means that those same low-income elders, who are likely to execute TODs will also be more likely to be on Medi-Cal and thus [inadvertently] subject their estates to recovery.
CANHR is "embarking on a campaign to educate consumers about the impact" of the new California law.
Wednesday, March 9, 2016
This week is Spring Break for our law school and I've had a bit of time to catch up on my stack of "must read" books. Here are two that caught my attention:
Settling In: My First Year in a Retirement Community, by Richard L. Morgan (2007):
"At age seventy-four, I left my home in the state of North Carolina, which I dearly loved and where I had lived for fifty years, to come to a retirement community in Pennsylvania. In a real way, I left my identity, forged over years of hard work and experience, to start a new life as a relative nobody. At times I endured sleepless nights, worrying if I had made the right decision."
With that beginning, the writer tracks his evolution in thinking about a retirement community, candidly describing excitement and depression, while achieving a growing sense of engagement with his new environment. A retired Presbyterian minister, the writer uses both religious and non-religious texts to supplement his thinking. There's a real honesty here that transcends any religion, and the book seems useful not just for new or prospective residents but also for adult children and care-givers.
What's the Deal with Retirement Communities?, by Brad C. Breeding, Certified Financial Planner (2014):
I met the author a few years ago while he was in the development phase of a project to provide consumer-friendly internet materials on continuing care retirement communities (and more on that in a few days!). But he also has a helpful little book that offers objective information on how to assess a community, including chapters on understanding various types of contracts and financial viability factors. A good place to start for someone who wants to ask the right questions.
Wednesday, March 2, 2016
The New York Times ran a story at the end of February about the appeal of a Continuing Care Retirement Community or CCRC. (Just a note that LeadingAge, a group of aging service organizations is using Life Plan Communities). The Everything-in-One Promise of a Continuing Care Community examines the appeal of CCRCs. Looking at how it works, the article discusses the often-times hefty entrance fee and compares that to a "fee for service model". The article explains what one gets (and what one doesn't) when one is signing a CCRC contract: "[k]eep in mind that few of these contracts involve direct, conventional purchase of a housing unit. In most cases, the resident buys only the lifetime right to live in a community, take advantage of its range of amenities and services, and receive care there. The units generally are not bought and sold on the open market."
My co-blogger, Professor Pearson is quoted in the article discussing regulatory oversight and transparency:
“There’s a lack of transparency with C.C.R.C.s that’s resulted in weaker trust,” said Katherine C. Pearson, a professor at the Dickinson School of Law of Pennsylvania State University who has testified before Congress on the issue. “You need to visit several facilities, talk to residents, look at past cost increases and five years of financial records.”
Professor Pearson, who talks with continuing care community residents around the country, said there was no one rule of thumb to use when evaluating these communities. A prospective resident generally wants a community that is active and engaged and “supports healthy living,” she said. But given the magnitude of the decision (after all, it is often the last major purchase someone will ever make), it deserves very careful consideration.
“Get as much financial information as you can,” she said. “This is not an impulse buy.”
The article offers some practical advice when considering a CCRC. The article notes it isn't as easy as an apples to apples comparison since there is no government rating system of CCRCs and "[t]he major drawback in evaluating continuing care communities is the complexity of their contracts, which come in a number of variations. Some may require a deposit of up to $1 million, while others may charge only monthly fees. Refunds may be difficult to obtain and depend upon the length of stay and other requirements. Contract details have to be read carefully and financial statements reviewed." The article suggests
- review of the contract by a team of professionals, and look specifically at the contract regarding refunds of the entrance fee, whether there is a rescission period, how a decision is made if the resident needs a higher level of care and the financial stability of the company.
visiting the CCRC and talking to residents and staff. Visit all areas of the CCRC.
compare several CCRCs and check with the appropriate state agency for any complaints filed vs. the CCRC. Ask around-the article suggests the local senior center might be a good place to find out more.
Tuesday, February 23, 2016
Stakeholders and Policymakers Collaborate on Proposals for Better Approach to Financing Long-Term Care
On February 22, 2016, a diverse collection of individuals, representing a broad array of stakeholders interested in long-term care, released their report and recommendations for major changes. In the final report of the Long-Term Care Financing Collaborative (LTCFC) they propose:
•Clear private and public roles for long-term care financing
•A new universal catastrophic long-term care insurance program. This would shift today’s welfare-based system to an insurance model.
•Redefining Medicaid LTSS to empower greater autonomy and choice in services and settings.
•Encouraging private long-term care insurance initiatives to lower cost and increase enrollment.
•Increasing retirement savings and improving public education on long-term care costs and needs.
ElderLawGuy Jeff Marshall wrote to supplement this post by providing details of the report, written by Howard Glecknan of the Utban Institute. Thanks, Jeff!
Members of the Collaborative included:
Gretchen Alkema, The SCAN Foundation; Robert Blancato, Elder Justice Coalition; Sheila Burke, Harvard Kennedy School; Strategic Advisor, Baker, Donelson, Bearman, Caldwell & Berkowitz; Stuart Butler, The Brookings Institution; Marc Cohen, LifePlans, Inc.; Susan Coronel, America’s Health Insurance Plans (AHIP); John Erickson, Erickson Living; Mike Fogarty, former CEO, Oklahoma Health Care Authority; William Galston, The Brookings Institution; Howard Gleckman, Urban Institute; Lee Goldberg, The Pew Charitable Trusts; Jennie Chin Hansen, immediate past CEO, American Geriatrics Society; Ron Pollack, Families USA; Don Redfoot, Consultant; John Rother, National Coalition on Healthcare; Nelson Sabatini, The Artemis Group; Dennis G. Smith, Dentons US LLP; Ron Soloway, UJA-Federation of New York (retired); Richard Teske (1949-2014), Former U.S. Health and Human Services Official; Benjamin Veghte, National Academy of Social Insurance; Paul Van de Water, Center on Budget & Policy Priorities (CBPP); Audrey Weiner, Jewish Home Lifecare, immediate past Chair, LeadingAge; Jonathan Westin, The Jewish Federations of North America (JFNA); Gail Wilensky, Project HOPE;Caryn Hederman, Project Director, Convergence Center for Policy Resolution; Allen Schmitz, Technical Advisor to the Collaborative, Milliman, Inc.
Wednesday, February 17, 2016
In 2010, I spent several months of my sabbatical in Northern Ireland. I soon learned that older people there are highly organized and very visible, working together on issues such as protection from abuse, housing, utility costs, elder care options, access to benefits and more.
They knew that their best chances for success were to band together to tackle problems. They knew that they could not depend on a few to keep the work going, and they consciously brought "younger" seniors into leadership positions to keep the advocacy teams well staffed and to provide continuity of effort. Plus, they were not shy about presenting a unified national platform of concerns and recommended solutions -- as suggested by that year's "Pensioners' Manifesto," promoted at parades and public gatherings. The advocacy plan was supported by AgeNI, Age Sector Platform, Changing Ageing Partnership and other "separate" organizations.
In the US, seniors' concerns often cross jurisdictional boundaries, including state boundaries. The distances are farther apart in the U.S. than in Northern Ireland, but again there can be power in organizing. As part of my research, I've been watching several groups across the country using the power of the internet to share information and "gather " in order to advocate for solutions to common problems. A key to success seems to be advocating from a position of strength in numbers and shared concerns.
One of the U.S. organizations I've watched closely has been the National Continuing Care Residents Association or NaCCRA, a national body that grew out of early advocacy on behalf of residents in life care and continuing care residences in Florida. Residents came to recognize that as much as they appreciate and even love their individual communities, there are often common concerns about matters such as provider accountability for entrance fees and service fees paid by residents, understanding Fair Housing and ADA rules for residents with disabilities, residents' rights during changes of "ownership," resident rights during provider insolvency, reorganizations or bankruptcy, transparency of management decision-making and more.
NaCCRA has both individual members and state chapters, and recently, resident-members in the State of Washington recognized that stronger funding of the national organization through the state chapters is needed to support effective advocacy at every level. By comparison, the senior housing providers certainly share information (and money) on a national basis -- see e.,g., LeadingAge and American Seniors Housing Association -- especially when addressing their advocacy positions with regulators and government leaders.
It will be interesting to see whether residents in CCRCs and Life Care communities in other states join Washington residents in supporting a strong national team through NaCCRA.
Monday, February 15, 2016
My friend, colleague and renaissance guy, Mark Bauer, keeps an eye out for interesting articles for me, including those that focus on a community's livability for elders. He sent me this great article that looks at how a vibrant, walkable community can increase one's longevity once one reaches 80. The article, Land use mix and five-year mortality in later life: Results from the Cognitive Function and Ageing Study, appears in volume 36 of Health and Place at pages 54-60 (Mar. 2016). Here's the abstract
This study explores the potential modifying effect of age and mediation effect of co-morbidity on the association between land use mix, a measure of neighbourhood walkability, and five-year mortality among the 2424 individuals participating in the year-10 follow-up of the Cognitive Function and Ageing Study in England. Postcodes of participants were mapped onto Lower-layer Super Output Areas, a small area level geographical unit in the UK, and linked to Generalised Land Use data. Cox regression models were fitted to investigate the association. For the younger older age group (75–79 years), the effect of high land use mix on an elevated risk of mortality was mediated by co-morbidity. For older old age groups (80–84, 85+ years), a higher land use mix was directly associated with a 10% lower risk of five-year mortality. The findings suggest differential impacts of land use mix on the health of the younger and older old.
I thought this quote from the implications/future research section persuasive: "[P]olicy planning should take note of such variation within older populations, and in particular the needs of the middle and oldest old cohorts. This observation is particularly relevant to the recent movement toward age-friendly environments, which have been advocated worldwide to create inclusive and supportive living environments for active ageing... improving the mix of land uses in local areas may be a potential approach to reduce limitations in activity of daily life and support active ageing for these older age groups."
A pdf of the article is available here.
Thursday, February 11, 2016
The Washington Post's Tara Bahrampour has a very thoughtful article this month focusing on a common fact pattern. One family member asks -- or another family promises -- that "a nursing home" will never be utilized for care needs. While fear may be driving the request, guilt and strong feelings of moral obligations may be driving the promise. Both sides, however, may need more information to make the best decision:
For many, the idea of being sent to a facility implies abandonment. Older Americans remember the poorhouse , where the old and infirm were hidden away to die. But many younger people also are repelled by the idea.
There’s now a wider spectrum of facilities catering to different levels of need, but even the best ones can feel institutional. Daily life is often rigidly regulated, robbing residents of autonomy, and the familiar faces and spaces of a person’s life are gone....
A couple of generations ago, families were more likely to care for their parents at home — but people didn’t live as long. Thanks to modern medicine, even those with devastating illnesses such as Alzheimer’s can live many years past their diagnoses. But caring for them at home becomes increasingly difficult as cognition and self-care skills worsen. Safety, of the patients and of other family members, can also become a factor.
Ultimately, as geriatrician Bill Thomas explains for the article, instead of "red herring" promises that may be impossible to keep, everyone could benefit if there were stronger advocates, including families, demanding more of the nation's long-term care industry:
"The nursing home industry has, ironically, benefited tremendously from the low expectations people have,” Thomas said. “They have successfully persuaded people that you’ve got no other choice — it’s got to be cold and sterile and rigid.”
As some family members explain, they have learned the more important promise is to keep caring, regardless of the better "place" for care. For the full piece, read "Promise You'll Never Put Me In A Nursing Home."
Special thanks to George Washington Law Professor Naomi Cahn for sharing this article.
Thursday, January 21, 2016
I spent the first week of 2016 in Cuba with Dickinson Law students -- and it was an energizing experience (even as I fear I will never catch up on my other responsibilities this semester!). The students' studies in Cuba were wide-ranging, with opportunities to engage with experienced legal professionals while discussing historic principles and modern plans for Cuba, including a close look at laws adopted just in the last two years that will affect economic development, international investment in Cuba, employment, property ownership and taxes. For a full report on the course coverage and special events (including great photos by the students), see "Experience Beyond the Classroom Proves Invaluable."
For me, it especially interesting to hear directly about Cuba's health care system, which is highly regarded throughout the world, especially for its success in primary care for pregnant women. From Dr. Yoandra Adelá (depicted left) we learned core principles that guide Cuba's plans for health care, including a goal of universal coverage, free and equally accessible to all Cubans.
Our professors freely admitted challenges that Cuba faces in trying to meet health care goals in a struggling economy, with international partners important in order for Cuba to maintain access to medicines, technology and even credit needed to improve buildings and make necessary repairs at treatment sites.
Since 1985, Cuba has recognized a medical specialization in "comprehensive care" -- which emphasizes preventative medicine and community-based contacts. We saw this in action, where doctors from a local polyclinic spend half of their appointment days meeting patients in the office and half of those days seeing patients in their homes. We learned that for the elderly, many of the problems addressed by Cuban health care professionals mirror what is seen in the U.S., with hypertension and diabetes being significant health care risks; on the other hand, Cuba reports low incidence of infectious disease in their population.
I still need to learn more -- especially as I did not have time to fully explore "elder care," which reportedly includes some 380 hogares de ancianos and casas de abuelos, in addition to primary care offices that specialize in geriatric medicine. To the right is Corey Kysor, one of our law students visiting a Havana area polyclinic, the middle level of three components of health care available to all Cubans. (And yes, our law school does plan to return to Cuba in the next academic year to offer additional opportunities for comparative legal studies.)
If you would like to read more, from the perspective of a law student who had already experienced foreign legal systems such as China before traveling for her first time to Cuba this January, read Joy Lee's "Inside Cuban Law and Culture: A Law Student's Perspective."