Thursday, May 21, 2015
St. Louis Elder Law Attorney Martha Brown recently recommended a 2013 documentary, writing: "It is called 'Moving with Grace.' It is played a lot in St. Louis on the local PBS station as reporter Stone Phillips and his parents lived in St. Louis. It is a wonderful documentary about the trials and tribulations of aging parents without the drama of a dysfunctional family." That is an important message, right? The challenges associated with "growing older" can hit everyone, even the "best" of families.
American Public Television, that distributes the program, previews it and offers a link to scheduling in your area here, explaining:
Like many baby boomers, former NBC anchor Stone Phillips and his siblings found themselves caring for their aging parents. Ninety-two-year-old Vic, a World War II veteran, copes with chronic heart issues, although his mind and memory remain "as reliable as a Bob Gibson fastball." Grace, his wife of 66 years, suffers from dementia, which robs the once-gregarious former teacher of her short-term memory. MOVING WITH GRACE, an intimate documentary Phillips produced and shot, follows this charming couple as they move out of the family home in Missouri and adapt to life first in a retirement community and later in an assisted-living facility. This honest and, at times, poignant story highlights the common struggles associated with elder care and its consequences.
Thank you, Martha, for sharing this resource!
May 21, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Television | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 20, 2015
This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston. Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living. Their organization has some 800 individual members, representing a majority of the communities in the state.
My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick. Here the "contract" trumped the statute.
In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.
May 20, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Tuesday, May 19, 2015
Recently I had the opportunity to read a report of Northern Ireland's independent Commissioner of Older People advocating for "a change of culture" to better protect older people in care settings. The thirteen primary proposals strike me as concise, reasonable, and extraordinarily important, for any (make that every) country, including the U.S.. See what you think:
1. The rights, quality of life, dignity and care needs of vulnerable older people should be at the heart of planning, delivering, regulating and inspecting care services; it is their needs that must matter the most.
2. Standards for the care of vulnerable older people should be clearly displayed and available to all service users and their families and relatives of all nursing, residential and domiciliary care services as well as for any prospective users.
3. Inspection processes should be rigorous, with decisive and timely enforcement action taken when failings are detected.
4. The regulation and inspection service should include a rating system for care homes and domiciliary services. In addition to an overall rating, it should clearly identify if there are any breaches of regulations or failures to comply with improvements required.
5. There should be clear and rigorously applied sanctions taken against care providers for non-compliance with the minimum standards.
Monday, May 18, 2015
Publically-traded Brookdale Senior Living, founded in 1978, has grown to become the largest owner and operator of "senior living" communities in the U.S., including for-profit continuing care retirement communities (CCRCs). Thus, it is good to keep an eye on the finances of Brookdale for those of us interested in the long-term financial health of CCRCs and other senior housing options.
Steve Monroe at Irving Levin Associates notes that Brookdale "was no different than the rest of the market, posting sharp drops in first quarter occupancy" for 2015:
"The legacy Emeritus [a component of Brookdale, following a 2014 merger] properties posted a 110 basis point decline from the fourth quarter of 2014, and a whopping 200 basis point decline from a year ago. The legacy Brookdale properties dropped 80 basis points sequentially and 110 basis points from a year ago. This was not good news, but not unexpected. Oddly enough, the legacy Brookdale properties had a 250 basis point increase in community operating margin to 35.2% despite the occupancy declines. The Emeritus properties had a 90 basis point sequential drop in margin, which makes more sense."
How do you achieve a significant increase in "operating margin" despite "occupancy declines?" A good question to ponder. Steve Monroe continues: "The reasons for the legacy Brookdale improvement were a combination of cost controls and more pricing flexibility. Move-ins have been increasing, which is great, but 'cost controls' always make me nervous, especially with the current acuity creep. Stay tuned."
The reference to "acuity creep" is to the increase in average age and frailty of new residents, compared with past years (especially before the financial crisis of 2008-10). This trend impacts CCRCs in several ways, both in terms of market appeal to healthier potential residents, and operating costs tied to an earlier need for higher levels of care. An additional question may be whether low interest rates have supported a bubble in certain segments of senior housing despite the softer occupancy rates, and whether an eventual return to higher capitalization rates will result in lower values and additional consequences.
Along that same line, the Philadelphia Inquirer published a recent article in their "retirement" news edition, noting "Continuing-Care Retirement Community Choice Requires Diligence," by Harold Brubaker, with tips on what to ask if you are a consumer considering a CCRC option.
Friday, May 15, 2015
On May 12, the U.S. Department of Justice announced resolution of a disabilities discrimination complaint initiated by residents of a Continuing Care Retirement Community (CCRC) in Virginia.
The resolution includes filing of a complaint and consent order that resolves allegations that Fort Norfolk Retirement Community Inc. (Fort Norfolk) violated the Fair Housing Act by instituting policies that discriminated against residents with disabilities at Harbor’s Edge, a CCRC in Norfolk, Virginia:
The consent order, which still needs to be approved by the court . . . along with a complaint, in the U.S. District Court of the Eastern District of Virginia. The complaint alleges that beginning in May 2011, Fort Norfolk instituted a series of policies that prohibited, and then limited, residents in the assisted living, nursing and memory support units at Harbor’s Edge from dining in dining rooms or attending community events with independent living residents. The complaint also alleges that when residents and family members complained about these policies, Fort Norfolk retaliated against them. In addition, the complaint alleges that Fort Norfolk had polices that discriminated against residents who used motorized wheelchairs by requiring those residents to pay a non-refundable fee, obtain liability insurance and obtain Fort Norfolk’s permission.
Under the consent order, Fort Norfolk will pay $350,000 into a settlement fund to compensate residents and family members who were harmed by these policies. Fort Norfolk will also pay a $40,000 civil penalty to the United States. In addition, Fort Norfolk will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.
There is a history of similar issues arising in other CCRCs. For example, in 2008, in California, CCRC resident Lillian Hyatt initiated, and eventually resolved to her satisfaction, a discrimination claim based on a ban on "walkers" in the dining rooms of her community.
As the average age of residents in CCRCs has increased in recent years, the "appearance" issues are sometimes raised as a marketing or image concern, contrasting sharply with the expectations of individual residents as they age and seek continued access to the full range of services in their community.
Our thanks to Karen Miller, Esq., of Florida, for bringing the recent Virginia case to our attention.
Wednesday, May 13, 2015
One option for seniors needing more income late in life is using the equity in their homes, and "reverse mortgages" may make it possible for the older homeowner to stay in the home longer. The Washington Post recently explored the option of having family members serve as the source of reverse mortgage funding. When the Kids Provide a Reverse Mortgage for Mom and Dad outlines potential pros and cons of family-based financing, starting with the mechanics of the loan:
Here’s a simplified example: Say you and two siblings want to help Mom and Dad, who are in their late 70s. You and your siblings are all doing well enough that you have at least some cash to spare. Ultimately, you want to retain your parents’ house for the estate once your parents pass away, keep costs to a minimum and sell the property only when you, not a faraway bank, choose to do so.
So you sit down with Mom and Dad and determine that, at least for the foreseeable future, they will need about $1,500 in additional income a month. You and your siblings agree to apportion the payments among yourselves in some way, maybe a commitment of $500 a month each for a period of years. You also pick an interest rate that achieves a win-win result for you and your parents — say, 3 percent annually. That’s much lower than a commercial lender would charge but higher than what you’ve been earning on your bank deposits or money market funds. There are no required fees upfront — hey, it’s Mom and Dad.
Thanks to Maryland elder law attorney Morris Klein for the pointer to this article.
Monday, May 4, 2015
The Employee Benefits Research Institute (EBRI) recently published an interesting examination of financial situations of older Americans at the end of their lives. The report documents:
- the percentage of households with a member who recently died "with few or no assets,"
- the continued importance of Social Security for older households,
- the potential importance of "big data" analytics "to determine how people behave when it comes to health and retirement plans," including the potential to "get better results at lower cost," and
- the fact that the "health sector is considerably farther down the road than the retirement sector in using data analytics in benefits plan design and management."
Monday, April 27, 2015
Occasionally I feel a little "push-pull" from the different directions that writing about "laws and policies of aging" takes me. One minute I'm writing about hunger for seniors in our nation's capitol, a dynamic driven by poverty, and then there is today's story from NPR on Drop-In Chefs Help Seniors Stay in Their Own Homes.
"Part of the business plan is keeping the service affordable. In addition to the cost of the food, the client pays $30 an hour for the chef's time. That's usually a couple of hours a week of cooking and cleaning up the kitchen. There's also a $15 charge for grocery shopping. So clients pay on average $45 to $75 a week.
And while there are lots of personal chefs out there and services that deliver meals for seniors there are few services specifically for older adults that prepare food in their homes."
All part of the big, complex picture of "aging."
Thursday, April 23, 2015
As summarized in a recent article in the Washington Post, a new study places Washington D.C. fourth in the nation for seniors at hunger risk:
"The report says that more than 20 percent of the District’s elderly have concerns about eating enough food or the right kind of food, compared with more than 24 percent of seniors in Mississippi.
The estimates of senior hunger range from about 8 percent in Minnesota to more than 26 percent in Arkansas, which was ranked highest among states where seniors face the threat of hunger. Virginia and Maryland both had rates of about 14 percent.
The analysis – conducted by two university researchers on behalf of the nonprofit National Foundation to End Senior Hunger and the National Association of States United for Aging and Disabilities – says nearly 15.5 percent of elders, or 9.6 million people, in the United States face the threat of hunger...."
My thanks to George Washington Law Professor Naomi Cahn for sharing this article. We agree -- depressing news.
As outlined by The Washington Post, AARP Public Policy Institute has a new "Livability Index" offered as a way to evaluate factors such as safety, security, ease of getting around, access to health care, and housing affordability.
More intangible factors are also assessed, such as WiFi, farmers' markets and "public policies that promote successful aging."
(After following the trauma of the trial in Iowa, I wonder whether "criminal laws on sexual relations between husband and wives if one has dementia" should be added as an express factor?)
Wednesday, April 22, 2015
Most of my family likes the PBS television show "This Old House." (Not me: I prefer "International House Hunters.") I have a good friend-- we'll call her Louise -- who is getting ready to celebrate her 90th birthday and has the ability to turn a good phrase. For years she has been saying her plan was to stay in her home, a lovely "old house" built in the 1920s, until "whatever happens next." (She also refers to my writings here for Elder Law Prof as my "blobs.")
Recently, however, Louise admitted to considering a new plan. One thing after another in "this old house" was going wrong. First it was her land-line phone that would intermittently crackle and pop, eventually making all calls impossible. Next it was seemingly random problems with loss of electricity to one side of the house or the other. Finally, when everything in the kitchen lost power, she got serious. Soon there was a big trench behind the house, as the electricians tried to locate the problem.
Eventually they found about a 4 foot length of burned wiring in the ground, inside of the buried conduit leading to the house (!). They explained the wiring in and to Louise's house was just "too old." Fortunately, my friend could afford the massive repairs (not cheap), but that still meant living with her daughter 45 minutes away, and commuting to meet with the workers during the weeks without any power. And as she asked, "what's next?" Her house is about 3 years older than Louise.
Louise's story plus a recent article from the Patriot News got me thinking. In Harrisburg, PA, the mayor was proposing a way to help a 92 year-old-woman get help to deal with sewer line repairs from the street to her house that cost $10,000. Helping one person -- the proposal was for $2,000 -- was just the tip of the iceberg (so to speak -- I'm running out of metaphors). The article explained:
Friday, April 17, 2015
Scott E. Townsley, a very bright attorney, an adjunct associate professor at UMBC's Erickson School of Aging Studies, and a principal with CliftonLawsonAllen LLP, invited me to join him recently for a presentation to the 2015 Mid-Atlantic Region Resident Council Conference in Silver Spring, Md. (The lovely D.C. area cherry trees were in full bloom that day.)
Our theme was "Hot Topics in Continuing Care." Scott, a regular consultant to nonprofit CCRCs, used his deep experience in senior housing to outline his perspective on the biggest issues facing CCRCs. In preparation for my part, I reached out to my contacts in resident groups around the country and asked them to share with me their biggest concerns.
We then trimmed down our two respective lists and used a Point/Counter Point approach to the debate. Do any of our readers remember 60 Minutes' James Kirkpatrick and Shana Alexander? (Okay, how about Dan Aykroyd and Jane Curtin's lampoon of the Point/ Counter Point format? I think it is fair to say that we were less political than the first combo, and more polite -- if less humorous -- than the SNL crew. But we had fun.)
With a tip of the hat to David Letterman in borrowing his "top ten" format, here is a very distilled version of my list of Resident Concerns:
10. What does it really mean to be a nonprofit CCRC in 2015?
9. Do we need to worry about conversions of nonprofit CCRCs to for-profit?
8. What is the right response to the trend that residents are older and more disabled, even when first entering the community?
April 17, 2015 in Consumer Information, Dementia/Alzheimer’s, Discrimination, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations, Web/Tech | Permalink | Comments (3) | TrackBack (0)
Thursday, April 16, 2015
From the New York Times on April 14, an article from the business section, As Nursing Homes Chase Lucrative Patients, Quality of Care is Said to Lag.
Promises of “decadent” hot baths on demand, putting greens and gurgling waterfalls to calm the mind: These luxurious touches rarely conjure images of a stay in a nursing home.
But in a cutthroat race for Medicare dollars, nursing homes are turning to amenities like those to lure patients who are leaving a hospital and need short-term rehabilitation after an injury or illness, rather than long-term care at the end of life.
Even as nursing homes are busily investing in luxury living quarters, however, the quality of care is strikingly uneven. And it is clear that many of the homes are not up to the challenge of providing the intensive medical care that rehabilitation requires. Many are often short on nurses and aides and do not have doctors on staff.
Some colorful quotes here ("patients are leaving the hospital half-cooked"), but a lot of this well-written article nonetheless seems like old news to me (okay, perhaps that's because of my chosen research focus), with reporting on trends influenced by operating margins on the "nonprofit" side of care, and "return on investment" for shareholders on the for-profit side. Perhaps "intensity" of the pressures is the theme here?
Tip of the hat to George Washington University Law student Sarah Elizabeth Gelfand ('16) and GW Professor Naomi Cahn for making sure we saw this article!
Tuesday, April 14, 2015
The Washington Post reminds us that changes to federal law for government-backed reverse mortgages, adiopted in 2014, are about to kick in:
"Interested in a reverse mortgage without a lot of hassles? Better get your application in fast. As of April 27, the federal government is imposing a series of extensive 'financial assessment' tests that will make applying for a reverse mortgage tougher — much like applying for a standard home mortgage.
[D]uring the years of the recession and mortgage bust, thousands of borrowers fell into default because they didn’t pay their required property taxes and hazard insurance premiums. On top of that, real estate values plunged, producing huge losses on defaulted and foreclosed properties for the FHA. The losses got so severe that the Treasury Department had to provide the FHA with a $1.7 billion bailout in 2013, the first in the agency’s history since its creation in the 1930s.
All of which led to the dramatic changes coming April 27. Applicants are now going to need to demonstrate upfront that they have both the 'willingness' and the 'capacity' to meet their obligations. Reverse-mortgage lenders are going to pull borrowers’ credit reports from the national credit bureaus, just as they do with other mortgages.illion bailout in 2013, the first in the agency’s history since its creation in the 1930s."
For more details see the full Post article at Window Is Rapidly Closing to Get Hassle-Free Reverse Mortgage.
Saturday, April 11, 2015
One of the first assignments I give to law students in my Elder Law course is to visit a "nursing home" and to see if they can get a copy of the admission agreement or contract. (Most of the facilities in my area cooperate with these student visitors.) The lesson here, however, is revealed when the students bring the documents back to the classroom for discussion. We discover that the majority of the contracts are not for admission to "skilled nursing facilities."
More frequently the facilities in question are licensed as "continuing care retirement communities" or CCRCs, which are big in Pennsylvania, or personal care homes (PCs or PCHs), or assisted living (AL) communities, each of which have different state regulations applying to their operations. These are not "nursing homes," or at least, they are not "skilled nursing facilities." Further, in Pennsylvania, increasingly there may be no label at all -- at least not a label that the public is familiar with -- and that is often by design as the facility or community may be attempting to avoid a "higher" level of requirements.
The usual explanation is that the choice in label is not driven by concerns over "quality" of care, but by costs of having to meet some non "care" related regulation, such as AL state requirements for room size or physical accommodations. The facility makes the case that it can meet the real needs of its clientele without being tied to "higher care" and therefore more "costly" models for senior housing. Fair enough. Caveat emptor. If you are the customer, make sure you do your homework, ask questions, comparative shop, and avoid assumptions based on pretty pictures in marketing brochures. And try to do all of this before an emergency that accelerates the need for a move.
But, there can be significant differences triggered by a label (or lack thereof) that are not readily apparent to the public. A recent Policy Issue Brief published by Justice In Aging (formerly the National Senior Law Center) uses examples from California to shine a spotlight on subtle issues in labeling, as well as on the importance of regulations that are responsive and up-to-date. Merely changing an "identity" or label should not be the basis for failing to comply with minimum standards relevant to the clients' needs.
In How California's Assisted Living System Falls Short in Addressing Residents' Health Care Needs, Justice in Aging (JIA, to make our circle of acronyms almost complete), provides a sample job notice for a California facility and asks "can you spot the legal violations in this Assisted Living job announcement?" The notice, appears to be hiring for a "certified med aide," despite the fact that there is no such thing in California, and more importantly, if the facility calling itself "Assisted Living" is actually a RCFE (residential care facility for the elderly), the California regulations do not permit staff to administer medications. Outside of Medicare/Medicaid standards for skilled nursing facilities -- the "nursing homes" of the past -- there are no national standards for labeling of "assisted living" or the many alternatives.
JIA's issue brief dated April 7, 2015 is part of a series that explores how California's system functions and points to ways it could be modified to help assure residents their expectations and needs will be satisfied.
The lessons in the JIA brief -- with a few tweaks to respond to any given state's set of acronyms -- seem equally relevant in all states.
Tuesday, March 31, 2015
In DeCambre v. Brookline Housing Authority, decided by a federal district court in Massachusetts on March 25, the issue was whether a disabled adult living in Section 8 housing becomes ineligible for the housing subsidy because of disbursements to her from a special needs trust, funded as the result of a personal injury settlement.
Although the court affirmed the Bureau of Hearings and Appeal ruling on her income and expenses, thus disqualifying her for public housing benefits, the court also called for clearer federal guidelines to permit better planning for needy beneficiaries:
"[This case demonstrates the serious problem that beneficiaries of irrevocable trusts face; in particular, those that seek to pour lump-sum settlement funds into irrevocable trusts. But until the rules and regulations are clarified, public housing authorities should provide clear guidance and instruction for potential tenants with regard to their financial planning and spending. A more thorough and thoughtful analysis is required by public housing authorities when determining Section 8 eligibility, until further guidance is provided by the HUD."
Sunday, March 29, 2015
Leonard M. Alexander, in conjunction with his son, my good friend and former Dickinson School of Law faculty colleague, Peter Alexander, is the author of It Takes A Village: The Integration of the Hillburn School System. The brief, inspiring book provides another timely look at the challenges of desegregation and demonstrates the important roles played by persistent local leaders in moving towards integration. Leonard Alexander also reminds us that opposition to change was not solely a "southern" problem:
"Hillburn, New York, has always been a simple, quiet community. Part of its charm was the appearance that people of different races lived in harmony. The harmony, unfortunately, was attributable only to the social norms of the time. The white men in the village controlled everything -- jobs, banks, land -- and the colored people, as we were known and referred to, would be taken care of as along as we stayed in our place.
'Our place' meant we should not be too vocal or too uppity. Also, 'our place' meant that we would live on the colored side of town (with the dividing line being Route 17). 'Our place' also meant that we would attend a separate school from the main grammar school in the village. Since 1889, four years before the village of Hillburn was chartered, the colored children attended grammar school that was set aside for us. The school was situated alongside a babbling brook and it was known as Brook School. Unofficially, it was the colored school."
The book describes the efforts of Leonard Alexander's father, working with others in "the village," to obtain a key NAACP investigation and report in 1931 about the so-called "separate but equal" treatment of the town's two grammar schools. The evidence included the fact that new classroom texts were purchased only for the white school; the white's school's old books might then be sent to Brook School.
Leonard's book is also a testament to the importance of memory and storytelling. This is the story of multiple generations of the Alexander family's involvement with community action, education and civil rights.
In reading the book in one sitting, I was intrigued by the role that jobs played in the ability -- or understandable reluctance -- of community members to challenge inequality. Leonard's father worked for the New York City General Post Office, and that gave him the financial independence from the local factory owners to challenge their "Jim Crow" system. A small, poignant detail suggests the consequences of activism, as a white business owner and politico would attempt to curry favor (and, probably, votes) by passing out candy to local black children, unless he learned their last name was Alexander.
Congratulations to Leonard Alexander, and to proud son and co-author, Peter. And, by the way, how many of us have parents with "unheard" stories to share?
Monday, March 16, 2015
Justice in Aging (formerly the National Senior Citizens Law Center) has released an issue brief, How California’s Assisted Living System Falls Short In Addressing Resident’s Health Care Needs The Problem: Pretending that Medication Is Always “Self- Administered” According to the brief, the issue of safe medication administration has
been overlooked for decades. “Assistance with self-administration” is too often a code word for medication administration by a poorly-trained non-nurse. As explained above, other states already have addressed this issue. California has not, due to factors such as the no-health-care orientation of California’s assisted living law, and important concerns about changing state laws related to nurses’ scope of practice. Stakeholders (including nursing representatives) should work together to consider the options to improve medication administration in assisted living. DSS to its credit has taken initial steps to work with stakeholders to identify problems and solutions related to the current RCFE system.
The issue brief is the first in a series to be released by Justice in Aging. More information about Justice in Aging is available here.
Tuesday, March 10, 2015
University of Florida Professor Stephen M. Golant has a new book, Aging in the Right Place. The gerontologist advocates examining a host of modern options, and urges resistance to an overly simplistic mantra of "aging in place" as the only goal. For example, he examines assisted living, co-housing, supported "independent living" environments, the "village" movement and CCRCs.
Interviewed for a Washington Post article, Golant explained:
“It’s not an all-or-nothing situation, obviously,” Golant said in an interview about aging-in-place. “But I just wanted to point out the imperfections, and the weaknesses in some of the arguments. . .I want to point out that sometimes there’s too much hype.”
It’s the sort of hype that has surrounded what he calls the New Gerontology, a long running trend that sometimes seems to imply that if people follow certain regimens of diet, physical exercise, social activity and cognitive training, they might avoid aging altogether.
As I have also suggested here, it is important for individuals and families to be realistic about what it will take to stay at home safely, making it important to be open to a larger definition of "home" in order to emphasize better quality of life.
Friday, February 27, 2015
Check out Volume 48, Issue 1 of the Indiana Law Review which contains articles from the 2013 Program on Law & State Government Fellowship Symposium: State Governments Face the Realities of Aging Populations. Three articles are included from the symposium, all of which are available on-line. The articles include Introduction: Governing Choices in the Face of a Generational Storm, Aging Populations and Physician Aid in Dying: The Evolution of State Government Policy, and What the Future of Aging Means to All of Us: An Era of Possibilities.