Thursday, September 20, 2018
Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws, here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?
Troubled histories have emerged across the nation. Public concern has grown around the need for more careful consideration of the roles played by guardians. For example, events in recent years have highlighted the following problems:
- In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018.
- In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals. This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
- In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.
The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians. The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.
While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards. Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System. The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries.
September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 17, 2018
As anyone who has a loved on in a care setting can probably attest, the individuals who work there have tough jobs.
I was interested to read a McKnight's Senior Living commentary that focuses on a problem that may not be easy for the public to identify, the intentional use of "part-time" help to avoid an obligation to pay benefits for full time workers.
The author describes one woman who works 30 hours per week for each of two different employers -- that is 60 hours per week of hard work without benefits such as employer-sponsored health insurance. John O'Connor writes in an important column (with a title that could perhaps, unfortunately, be misunderstood because of the reference to a Hispanic name), Senior Living Has Way Too Many Marias:
We often hear about the labor challenge in senior living. To be sure, it's very real. There is a lot of competition, and conditions are especially difficult these days. It's not easy to find and keep people willing to work for the wages that are available.
But if we are going to be honest, at least part of the problem has little to do with unforgiving external conditions and more to do with conditions some operators have decided to put in place.
To get more to the point, many communities simply refuse to hire full-time workers. From an economics standpoint, that is understandable. But it doesn't do much for the Marias of the world. And there are a lot more of them out there than many operators would like to admit.
Thursday, September 13, 2018
State Regulators Seek to Revoke Licenses of California Facilities for Failures During Fire Emergency Response
Flying into California for Labor Day weekend was a vivid reminder for me as an East Coast resident of the devastation being wrought by wildfires on the West Coast.
News articles also call attention to the need for careful advance planning and training by senior care communities -- however labeled or regulated, and wherever located -- for emergencies such as fires. Reading recent articles also demonstrates that just because you are in a "high-end" facility, administrators may not have a functional plan.
As detailed in a written complaint filed the first week of September 2018, California regulators are seeking to revoke the licenses of two Santa Rosa facilities operated under the umbrella of Oakmont Senior Living endangered by wildfires on October 8-9, 2017. The complaint also seeks lifetime bans for individual administrators. While there were no deaths of residents or staff at either location, one location, Villa Capri, was completely destroyed in the fire.
The state's complaint alleges inadequate staffing to handle nighttime evacuations, plus failure to comply with emergency and evacuation procedures, either because of inadequate knowledge or training on the plans for the administrators and staff that were present. The complaint describes a bus that could have been used to facilitate evacuation, but the on-duty staff did not have keys. It is alleged that because of these failures, "no staff were at Villa Capri to assist with the evacuation of more than 20 remaining elderly and infirm facility residents." Family members of the residents and emergency responders conducted the remaining evacuations at both locations.
The facilities, described in news articles by various labels ranging from "nursing homes" (the label used in the first line of a New York Times article) to "luxury retirement communities" (as described in the Mercury News), were licensed under California law as "residential care facilities for the elderly." As such, they were subject to regulations requiring appropriate emergency plans, including evacuation plans. It appears that Villa Capri had 62 units devoted to "memory (dementia) care" and assisted living. The second community, Varenna at Fountaingrove, is reported to have had 228 residents, including many who lived in individual "casitas," and 14 residents who needed "care and supervision" or "hospice."
The state's suit comes a few days after news of a reported settlement of a civil suit for undisclosed terms, filed on behalf of 17 residents of Villa Capri.
September 13, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 11, 2018
I'm preparing for an upcoming program in North Carolina and residents of senior living communities have sent me questions in advance. The questions I've received are a reminder that "transparency" is a big issue. As one resident candidly explained, "No population is more vulnerable than seniors living in managed care.... I consider myself among the vulnerable." I've come to believe that lack of transparency impacts virtually all of the options for financing of senior living, including long-term care insurance and continuing care communities. The problem is that many prospective clients do not know who they can trust, and many end up trusting no one. They end up not making any advance plan.
For example, this week there is industry-sourced news that 33 facilities operated under the umbrella of Atrium Health and Senior Living, a New Jersey-based company, are going into receivership. These include 9 "senior living communities" and 23 "skilled nursing facilities" in Wisconsin, plus a skilled nursing facility in Michigan. Atrium is also reported as operating 3 senior living communities and 9 skilled nursing facilities in New Jersey that "are not part of the receivership." If you look at the company's website today, however, it won't be easy to find news that insolvency is already impacting this company's sites. At least as of the time of my writing this blog post, there's only "good news" on the company's website.
The public tends not to distinguish between different types of senior living options, at least not until individuals get fairly close to needing to make choices about moving out of their own homes. I can easily imagine anyone who has done enough advance research to know about troubled companies to simply make a decision to steer clear of all facilities operated under a particular company name. But, I suspect there is also a much larger population of prospective residents who view reports of troubled senior living companies or facilities as a reason to reject all of the options.
Some providers will say that the problem is that "bad news" is over-reported. I don't think that is actually true. Rather, I think that there in most states is it hard to distinguish between financially sound or unsound options. Certainly, I've known state regulators who decline to talk about troubled properties on a theory that bad news may make it harder for struggling operations to work out their problems as they cannot attract new customers. Lack of transparency is argued as an explanation for giving operators a fair chance to recover, and recovery helps everyone.
States, however, have unique opportunities to learn from their roles as receivers for troubled operations. Wouldn't it be helpful for states to publish accurate information about what factors they have discovered that contribute to success or lack of financial success? And if not the regulators, why not have the industry itself publish standards of financial health.
September 11, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
I've been reading articles for several weeks about a "troubled" nursing home in Connecticut where staff members were reportedly being paid late, and not receiving payments on related benefit claims (including health care and pensions).
The reports sound unusually mysterious, with indications of an executive's "loan" to a related charity from operating reserves. Suddenly more than $4 million was apparently restored to a key pension account:
As News 12 has reported, federal agents raided the center back in May. When the raid happened, that account was down to $800. For years, workers have complained about missing retirement money. In a lawsuit, the Labor Department claims the facility's owner illegally funneled their money into his own private charity.
Now, according to new court documents, the $4 million was unexpectedly deposited into the pension account last week. It's unclear where the money came from, and even the bankruptcy trustee running the facility was unsure.
"I don't truly know the source, but I do know that there's $4.1 million in this bank," bankruptcy trustee Jon Newton said at a court hearing yesterday.
But in a recent court hearing, owner Chaim Stern's lawyer said the money "was meant to represent the $3.6 million transferred from the (retirement) plan to Em Kol Chai." That's the charity authorities say Stern controls.
Workers may not get as much of that money as they think. Bridgeport Health Care has a long list of creditors, and they could potentially get a share.
News 12 reported back in July that part of the facility, called Bridgeport Manor, is shutting down. Lawyers say they hope to wrap that process up within a month.
September 11, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)
Thursday, August 30, 2018
In my 1L Contracts course, I often discuss binding arbitration agreements, including those used as part of a package of admission documents in long-term care settings. I find that students tend to approach the subject from strong personal viewpoints. Some express their assumptions that arbitration is faster and less expensive than court-based litigation. Others, upon hearing the possible costs of arbitration and the rights that may be waived as a result of signing these agreements without careful thought or legal advice, ask whether they are "void" as unconscionable. We discuss the history of litigation in the nursing home realm, which has made the latter "contract law" challenge to be mostly unavailing.
On Tuesday, I sat in on an interesting "arbitration" discussion in an upper division Business Entities course that began with a unit on the law of agency. The springboard was the Pennsylvania Superior Court case of Wisler v. Manor Care of Lancaster, decided in September 2015. In the case history, the son had helped his father be admitted to a care facility for rehabilitation following a health crisis. The son signed the paperwork for his father, including an Arbitration Agreement. The son advised the facility he had a POA for his father, but the facility "did not obtain a copy of the power of attorney, nor could [the son] produce a copy at the time of his deposition." These facts became important after the family brought a personal injury suit against the facility; the defendant sought to compel arbitration.
The appellate court addressed this fact pattern as one of validity of an agency relationship between the son and father. The court concluded that without a written document or other evidence to establish the scope of authority granted to the agent, the alleged arbitration document signed only by the son was invalid to compel arbitration. The court found there was inadequate evidence of express, implied, or apparent authority for the son to waive his father's rights to a court-based trial, including any jury. Further, based on the facts, the court found no grounds to conclude the son had "authority by estoppel."
The court concludes that it is up to nursing homes to seek appropriate confirmation of the agent's authority. Reliance on oral representations was at their peril. "If a third party relies on an agent's authority, it must ascertain the scope of that authority at the time of reliance. . . . In other words, our decision should encourage parties seeking an agreement to arbitrate to ascertain the source of an agent's authority before allowing the agent to sign an arbitration agreement on the principal's behalf."
Perhaps the most interesting part of the class was the fact that the author of the appellate opinion, Pennsylvania Superior Court Judge Victor Stabile, was the guest lecturer for the discussion. He brought to bear not just his judicial experience but his commercial litigation experience to enliven the discussion. My thanks to Dickinson Law Professor Samantha Prince for inviting me to sit in on the interesting class.
Monday, August 27, 2018
New Jersey Governor Signs New Law Helping CCRC Residents Get More Timely Refunds of "Refundable" Fees
Back in April, I posted here about legislation pending in New Jersey, inspired in part by litigation. Residents of Continuing Care Retirement Communities in New Jersey were advocating for mandatory limits on how long a CCRC could hold "refundable" entrance fees after the death or departure of a resident from a facility. New Jersey CCRC residents are well-organized and they have earned the ear of legislators. Final passage on an amended version of Assembly Bills 2747/880 occurred on July 1.
On August 17, 2018, New Jersey Governor Phil Murphy signed Public Law 2018, c.98 into law. The old New Jersey Law required CCRCs to repay refundable fees, but the refunds were not mandated until 60 days of "the unit" being resold. Data collected by residents and disclosed during litigation revealed that some facilities were holding refundable fees for more than a year after the vacating of the particular unit, while marketing and selling "other" units first. In essence, the companies preferred to sell new units or other units unencumbered by a refund obligation, to maximize their income and asset picture.
The new law creates a preference list for the 60-day refunds, a type of "first out, first repaid" system. Key language of the new law provides:
"In the case of a continuing care agreement that provides for a refundable entrance fee, the facility shall assign the vacated unit a sequential 'refund' number among all available units with refundable entrance fees. Any balance [due on refundable fees] shall be payable based on the sequential 'refund' number assigned to the unit. . . . "
A compromise among facility owners and residents in the drafting of the legislation permits a facility to apply to the New Jersey regulatory body for CCRCs for permission to use an alternative methodology for making refunds, but "approval shall not be granted unless the facility can demonstrate that the use of the alternative methodology is resident-focused and provides for a more equitable and timely payment of refundable fees."
This final language appears to be more resident-friendly than an earlier proposed exception, which would have expressly recognized the possibility of conditioning refunds on the resale of "similar" units. Resident councils will probably need to be careful to review any alternative proposals submitted by their own CCRCs.
The act takes effect in 90 days from date of enactment. For more on the history of the legislation, see Signed: Bateman Law to Stop Retirement Communities From Taking Advantage of Seniors and Surviving Estate Holders.
Current residents did not get a clear win, as the new rules for refunds are mandatory only for CCRC agreements entered into on or after the effective date of the new law. Nonetheless, congratulations to CCRCs and residents in New Jersey on making changes that better respect the expectations of customers and their families about the use of funds that function, in essence, as an interest fee loan to the CCRC during the residents' tenure in the facilities.
Sunday, August 26, 2018
The New York Times reported recently on some innovations in The Netherlands, in Take a Look at These Unusual Strategies for Fighting Dementia. It opens describing a virtual bus ride "simulation that plays out several times a day on three video screens" and moves into explaining that this virtual bus trip "is part of an unorthodox approach to dementia treatment that doctors and caregivers across the Netherlands have been pioneering: harnessing the power of relaxation, childhood memories, sensory aids, soothing music, family structure and other tools to heal, calm and nurture the residents, rather than relying on the old prescription of bed rest, medication and, in some cases, physical restraints." Another recreates a trip to the beach, both of which can spur conversations about previous trips.
The Netherlands has a preference for paying for care in the home rather than in facilities. I've previously blogged about one facility in The Netherlands (De Hogeweyk). In The Netherlands, "facilities, which are privately run but publicly funded, are generally reserved for people in an advanced state of the disease." One component of the Dutch approach is the physical surroundings designed to create a certain era or location. Another is creating small households of residents.
The article is accompanied by a number of great photos of involved residents. I plan to ask my students to discuss whether the Dutch model would work here in the U.S. What do you think?
Monday, August 20, 2018
From wedding cakes to retirement communities. The dissonance here starts from the first mention of the name of the community, "Friendship Village." From the New York Times's Paula Span, comes news of a challenge to an admissions policy as applied to an older, same sex couple seeking to move into a "faith-based" nonprofit Continuing Care Retirement Community or CCRC (also known as Life Plan Communities) near St. Louis:
The community seemed eager to recruit them, too, offering a lower entrance fee if they signed an agreement promptly. So they paid a $2,000 deposit on a two-bedroom unit costing $235,000. They notified their homeowners association that they’d be putting their house in Shrewsbury, Mo., on the market and canceled a vacation because they’d be moving in 90 days. Ms. Walsh contacted a realtor and began packing.
Then came a call from the residence director, asking Ms. Walsh the nature of her relationship with Ms. Nance, 68, a retired professor.
Natives of the area, they’d been partners for nearly 40 years. Before the Supreme Court legalized same-sex marriages across the country, they’d had a harborside wedding in Provincetown, Mass. “I said, ‘We’ve been married since 2009,’” Ms. Walsh replied. “She said, ‘I’m going to need to call you back.’”
Last month, the women brought suit in federal court, alleging sex discrimination in violation of the federal Fair Housing Act and the Missouri Human Rights Act.
For the full article, read "A Retirement Community Turned Away These Married Women."
August 20, 2018 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Wednesday, August 8, 2018
The National Center on Law & Elder Rights is offering a free webinar on August 14, 2018 at 2 edt on Legal Skills-Eviction Defense-Helping Older Tenants Remain at Home.
Here's a description of the webinar:
More older adults are choosing to rent, rather than purchase homes. Older tenants are particularly at risk of eviction due to unaffordable rent increases, or retaliation for complaints regarding code violations. Moreover, as adults age, landlords may be reluctant to make reasonable accommodations for tenants with disabilities. Affordable housing is an important option for older renters, as it may offer reduced barriers and helpful amenities, but older adults may face other challenges preserving their tenancies in such housing.
This legal basics webcast will present a general overview of the tenants’ rights, examine one state’s process, and discuss defenses to eviction and other effective strategies to counter displacement.
To register, click here.
Wednesday, July 25, 2018
A recent reader asked about what happened in the Sears Methodist Retirement System bankruptcy case in Texas for residents who had paid a "refundable" entry fee before the company filed for reorganization under Chapter 11 of the Bankruptcy Code. In addition to sharing some legal documents in a recent update, I promised readers to reach out to contacts to get more of the story. I heard from a long-time correspondent, Jennifer Young. Here is her important story:
I am Jennifer Young. Prior to retirement I worked in Human Resources. I am currently a resident of a CCRC in North Carolina. I moved to North Carolina in 2015 after an unsatisfactory experience in a CCRC in Texas.
Here is what happened to me in Texas. I was a resident of a CCRC, one of the Sears Methodist Retirement Service (SMRS) communities, operated under nonprofit tax rules. There were 5 CCRC operations in the SMRS system, along with 2 subsidized senior housing complexes, an Assisted Living facility, and the management of 3 state veterans’ homes. Eleven communities in all. I managed to move into my CCRC just two years before SMRS filed for protection in bankruptcy court under Chapter 11.
My community was a Type C, 90% refund contract. Our CCRC was brand new, with the entrance fees of those moving in pledged to debt service for the construction loan. SMRS’ decision to break ground on the newest of their CCRCs in 2009 (in the middle of a recession) should have been my first red flag, but I was too wrapped up in the process of choosing a desirable lot and influencing the construction of our future cottage in my own community to think about the long-term implications of that management decision.
As I learned the hard way, the unsecured status of entrance fees meant that residents were “unsecured creditors” in the bankruptcy process; hence, I was advised to apply for a seat on the court’s Unsecured Creditor Committee. I did and served on this committee from the summer of 2014 until it was dissolved in the spring of 2015. Per Bankruptcy Court procedures, these Committees routinely hire a law firm (with fees paid by the bankrupt estate). Residents were lumped in with all of the other unsecured creditors. Meetings were conducted telephonically because committee members were quite scattered geographically. For example, one vendor of therapy services wasn’t headquartered in Texas.
I don’t remember whether the judge issued a formal order about the pre-petition refundable entrance fees, but I know all parties did not want residents to be financially harmed. They were worried about the very negative impact of residents losing their entrance fees, as happened during the 2009 bankruptcy of a Pittsburgh, Pennsylvania CCRC, Covenant of South Hills. A second such outcome, especially for a large, multi-facility community, would have been devastating to the continuing care industry as a whole.
In the Texas bankruptcy process, the court set up an interim manager (not from SMRS) who worked closely with attorneys from all parties in reviewing the offers from potential new owners. As a member of the above-mentioned Committee, I would hear that new owners MUST be willing to accept the current Residency Agreements (contracts). So “applications” to buy were screened in that regard; however, the Committee and the open court procedures did not reveal details regarding all the letters of intent that were submitted. They may have been buried in tons of documents, but I don’t know for sure.
There was an announcement in the fall of 2014 that another Texas non-profit wanted the CCRCs, and all parties seemed content with this prospect. However, that fell through, as this potential new owner’s Board put the kabosh on the deal. To simplify the complexities of the process, let’s just say that for the communities that were not “picked off” during the fall months, there was an auction in January 2015. In contrast, SMRS’ Assisted Living facility was purchased without an auction and its Subsidized Housing facilities went back to HUD.
Tuesday, July 24, 2018
We have blogged in the past on the family caregiver shortage heading our way. Some might even call it a crisis as the baby boomers relentlessly age on in large numbers. On Monday, one item in Kaiser Health News daily briefing offers this headline For Generations, Nation Has Relied On Family Caregivers. But Shifting Social Dynamics Could Leave A Vacuum.The Wall Street Journal examined this issue in America Is Running Out of Family Caregivers, Just When It Needs Them Most(subscription required). The article opens with a focus on one elder who has no children. Who will be her caregiver? "For generations, the nation has relied on family members to keep aging loved ones in their homes. Today, many Americans are growing older without family nearby, offering a glimpse of what the future may hold for the cohort of Americans who are approaching retirement."
The article pains a somewhat distressing picture of the future facing many older Americans, with low incomes, substantial debt (the article notes some of which may be from caring for their parents), and no family or nearby family to be caregivers. Currently nearly 95% of caregivers are family providing approximately "$500 billion worth of free care annually [yes you read that correctly--BILLION]—three times Medicaid’s professional long-term care spending—and help keep people out of costly institutions, according to a 2017 Merrill Lynch study." That sounds wonderful, but here is where this is all about to fall apart: "the supply of these caregivers is shrinking just as the nation needs them most. Every day, 10,000 people turn 65. In 2020, there will be 56 million people 65 and older, up from 40 million in 2010" while the number of available caregivers is shrinking, for a variety of reasons. Are there other options? Yes-private sector, but that's expensive and home health aides may be in limited supply. We already know about the limited benefits through Medicare and Medicaid. Boomers, no strangers to being part of the sandwich generation, may now find themselves in a different type of sandwich-they may be providing care for their parents and will perhaps need care for themselves or their spouses. Families are far flung, so caregiving from afar may be a new model. "Children do what they can from hundreds of miles away, checking references for an aide, managing bills, or arranging grocery deliveries. They often feel guilty for not being there to take a parent to the doctor and uncertain about how someone is really doing."
Technology (and there are a lot of cool options out there) may be offered as a mode of caregiving, perhaps even a substitute for an in person caregiver, but technology is not without limits. In some areas volunteers are filling in the gaps but of course, funding and sufficient volunteers can be an issue.
So what should these "elder orphans" do? "One-third of middle-age adults are heading toward their retirement years as singles. Women, in particular, are likely to stay or become single as they age....About 14% of frail older adults, or two million people, are without children and the number is expect to double by 2040, according to the AARP Public Policy Institute. “There’s no natural caregiver for this population,” says Grace Whiting, CEO of the National Alliance for Caregiving....While they can, they need to construct a network around themselves, aging experts say."
The article concludes with 5 recommendations, including local area agencies on aging, transportation, private companies, technology and remodeling a home to make it accessible. To that list I'd add, make a plan and talk to your elder law attorney about it. This is a comprehensive article that would be a good basis for a class discussion!
Tuesday, July 17, 2018
McKnight's Senior Living Newsletter editor Lois Bowers wrote an article that alerted me to the June 2018 publication of a new study of unlicensed residential care facilities. From the abstract:
Residential care facilities operating without a state license are known to house vulnerable adults. Such unlicensed care homes (UCHs) commonly operate illegally, making them difficult to investigate. We conducted an exploratory, multimethod qualitative study of UCHs, including 17 subject matter expert interviews and site visits to three states, including a total of 30 stakeholder interviews, to understand UCH operations, services provided, and residents served. Findings indicate that various vulnerable groups reside in UCHs; some UCHs offer unsafe living environments; and some residents are reportedly abused, neglected, and financially exploited. Regulations, policies, and practices that might influence UCH prevalence are discussed.
The study included visiting unlicensed facilities in Georgia, North Carolina and Pennsylvania.
For the full report see Unlicensed Care Homes in the United States: A Clandestine Sector of Long-Term Care, by Michael Lepore, Angela M. Greene, Kristie Porter, Linda Lux, Emily Vreeland, and Catherine Hawes, published in the Journal of Aging and Social Policy.
July 17, 2018 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
A recent newsletter article written for investors in senior housing (mostly REITs) captures a curious U.S. dynamic. The population of older persons is rising; occupancy in senior housing is mostly down; rental rates in senior housing are going up. Push, pull, push. And despite a clear 12-month downward trend in occupancy rates, another push, as new construction in senior housing is still robust. The Seeking Alpha article (fully available behind a registration firewall) summarizes:
In 2017, 45,000 new units of supply were delivered into the [senior home] market. To put this in perspective, approximately 140,000 people turned 83 in 2017, which is close to the average age in senior homes. Currently about 10% in this age group reside in senior homes. So, with 140,000 people turning 83, and additional demand was created for about 14,000 home units. You can hence see where a 45,000 unit supply can create a decrease in occupancy.
After analyzing returns in three specific REITs, the newsletter make a broader prediction that is relevant beyond the context of investment advice:
There might be light at the end of the tunnel. The same inflationary forces that are making life difficult for senior home operators are beginning to bite the senior home construction companies. From labor shortages to rising lumber prices, they are not facing a different cost curve than they did a few years back. Their ability to pass some of this is currently limited as purchasers of said properties are struggling to pass on higher rents to operators. If this actually succeeds in slowing down the supply, senior housing could become a great investment concept once again.
My own reaction to this type of an article (and I see a lot of articles that attempt to explain drops in senior occupancy) is that no one has successfully integrated the impact of state and federal government policies on funding (limited though that funding may be) for home care, nor the strength of the "age in place" preference of future seniors.
Monday, July 16, 2018
PA Elder Law Institute Session on CCRCs and LPCs Will Discuss Pending Legislation and Indicators on Financial Performance
As I mentioned earlier, Pennsylvania's annual Elder Law Institute is July 19 and 20 in Harrisburg. On the morning of the first day, I'm on a panel examining new issues in Continuing Care Retirement Communities (and Life Plan Communities), along with Linda Anderson, an elder law attorney, Kimber Latsha, who frequently represents health care and senior living providers including CCRCs, and Dr. David Sarcone, a Dickinson College business professor with background in accounting and health care management.
I'm especially looking forward to the discussion of Pennsylvania 2018 House Bill 2291, introduced in April of this year, but already moving from one committee, to its first of three considerations on the floor, to the Rules Committee, with amendments. In other words, this bill seems to have "legs." The sponsors of the bill are calling it an "Independent Senior Living Facility Privacy Act." As with most catchy titles for pending legislation, the details are a bit more complicated. In this instance the bill's lead sponsor is from a county where a single CCRC was investigated by the State Department of Human Services following a complaint that "staffing levels" were inadequate, leaving certain residents allegedly at risk. The Department of Human Services issued an adverse order in May 2017 related to certain aspects at the facility and apparently that order is the subject of administrative appeals.
The provider contests the order, and in written testimony submitted to the Pennsylvania House Committee on Aging and Older Adults Services, the CEO explained his company's position that the investigators were abusing their authority by entering independent living (IL) units, questioning IL residents, and thus failed to respect the individual autonomy of residents not actually living in "personal care" facilities, facilities that would be subject to HS authority:
"We feel that DHS is inappropriately applying the term 'premises' [from the personal care regulations] as the grounds and building on the same grounds, used for providing personal care services. Each senior apartment is a 'separate individual leasehold,' where an inhabitant, the lessee of the apartment leases an apartment and is afforded the enjoyment and freedom to engage family and third party services."
At the core of this issue is a question about expectations of the public and the residents about care in "independent living" units of a licensed "continuing care community." (Pennsylvania has at least one pending wrongful death suit involving an entirely different CCRC, where one issue is whether the CCRC's alleged awareness of an IL resident's worsening dementia was ignored. She allegedly died of complications of exposure after wandering and being locked out of her IL apartment complex on a cold night.)
The proposed legislation would exclude "independent senior living facilities" (including public housing outside of the CCRC context) from future state Human Services investigations, including investigations by the Long-Term Care Ombudsman.
I expect we will also be talking about financial performance numbers of both for-profit and nonprofit CCRCs -- especially as some of the numbers suggest that some operations both sides of the industry "profit" line may be struggling to "live within their means."
In other words, there will be some especially "hot" topics for discussion.
July 16, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, July 15, 2018
Over the weekend, a reader asked about the ultimate outcome of a Chapter 11 Bankruptcy reorganization, involving Sears Methodist Retirement System's CCRC properties in Texas, that we reported on back in 2014. The specific question was "what happened to the refundable entrance fees?"
The bankruptcy court approved escrow and repayment terms of refundable fees for "certain" residents as part of a proposed reorganization plan, with the purchaser(s) of one or all of the 8 involved CCRCs having the option of "assuming" or reaffirming resident agreements; but I need to research more to find out the ultimate outcome, once the dust settled. I've reached out to a few folks to see if there was a final accounting.
In picking up the research on the Sears Methodist case, that reminded me I had not reported in this blog on another CCRC bankruptcy court proceeding, filed as a reorganization under Chapter 11 in late 2015 involving what was then known as Westchester Meadows CCRC in New York.
The August 23, 2016 opinion for In re HHH Choices Health Plan, LLC is interesting, thoughtful, and remarkably accessible for nonlawyers. The issues addressed carefully include:
- Where the debtor in the Chapter 11 proceeding is a nonprofit organization, what rules apply for possible for-profit and nonprofit bidders? For example, could state law governing and limiting transfers of assets of a nonprofit organization apply? The Court concludes that although a new operator would need to comply with state laws (such as the Department of Health's licensing rules), the Bankruptcy Code controls bidding and sale of a bankrupt debtor's assets.
- What standards apply if one bidder, for a lower price, would continue operations as a nonprofit, while the other bidder, for a higher price (and thus more attractive to unsecured creditors), would convert to for-profit operations? Here, the Court observes that New York state law makes it "clear that price alone is not determinative, and that fulfilling the corporate mission can be decisive if creditors are all being paid in full." However, that rule was "clear" only if all the debtor's creditors would be fully paid, which would not be the outcome here. After careful consideration of case precedent, the Court concludes it can confirm a lower-priced sale of the assets, where the buyer satisfies certain standards and is better aligned with the charitable mission of the operation, including in this instance protection of the interests older residents.
The Court's concludes:
July 15, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, July 12, 2018
What Lessons Will Emerge From Arizona Investigation of 92-Year Old Woman Who Shot and Killed Her 72-Year Old Son?
Reading the news of a July 2 shooting was chilling, especially for anyone associated with long-term care or elder care. According to Arizona news reports, Anna Mae Blessing, age 92, explained, "You took my life, so I'm taking yours." She used a handgun, drawing it from the pocket of her robe, to shoot multiple times, killing her 72-year old son.
Ms. Blessing had been living in an apartment, along with her son and his girlfriend; she was reportedly upset about her son's plan to transfer her to an assisted-living facility. The apartment was located in Fountain Hills, east of Scottsdale, Arizona. Ms. Blessing also reportedly attempted, unsuccessfully, to shoot her son's girlfriend, who fought her off, dislodging both the first and a second handgun.
Followup stories reported the sheriff's office had responded at least six times to "domestic" calls at that location during the previous six months.
According to a sheriff office statement, Ms. Blessing is now charged with first degree murder, one count of aggravated assault with a deadly weapon and one count of kidnapping.
On the one hand, it could be tempting to dismiss this story as an isolated, sad, ironic tragedy.
But what I've been seeing is that senior living providers, especially those offering assisted living, are recognizing that something is deeply amiss about an individual's perception that assisted living is so horrible as to warrant this reaction.
Steve Moran who publishes the Senior Housing Forum asks "Why did she have such an aversion to assisted living?" He muses, "This is a fixable problem....." For more of Steve's thoughts read: "The Headline: Woman, 92, Killed Son Who Tried Putting Her in Assisted Living."
In an editorial titled "Assisted Living's Image Problem," Lois Bowers, Senior Editor for McKnight's Senior Living News, writes:
The Blessing case undoubtedly is a complex one, with more probably in play than a simple suggestion of a move to assisted living. But even so, it presents an opportunity for introspection for the senior living industry as well.
I mean, it seems that at least one person thought that assisted living was so terrible that a prison cell was preferable. And yes, this appears to be an extreme case, but it's not the first time that an older adult has resisted moving into a senior living community.
We know that senior living can offer physical and mental health benefits for older adults. So how can the industry improve at allaying their fears and educating them about those benefits?
And what can the industry do to educate the general public about the differences between assisted living communities and skilled nursing centers? More elucidation is needed, as was made obvious by articles in the lay press about the Blessing incident that used “assisted living” and “nursing home” interchangeably, despite a press release from the sheriff's office that specified that Thomas suggested assisted living to his mother (I know; I saw the press release).
We know that assisted living communities are different from SNFs, and we know that both types of facilities have evolved over the years, and yet I see this confusion regularly in the general media. I've seen government officials make this mistake, too.
So what's the solution? Surely, sales professionals educate individual prospects and their family members when they conduct tours and hold special events at their communities. Campaigns such as the American Seniors Housing Association's Where You Live Matters effort undoubtedly help, too, as does the advocacy work by organizations representing senior living operators.
I was in Arizona the day the story broke. I confess, I spent extra time with my arm around my own 92-year old mother that week -- at her home in assisted living.
July 12, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, July 11, 2018
AARP has named the top 10 cities with populations 500,000 and over that are the most "liveable." I'm not living in one of the top ten-are you? Nor am I living in one of the top 10 mid-sized (100,000-499,999) "liveable" communities. Nope, not living in one of the top 10 small (25,000-99,999) "liveable" communities either.
How does AARP determine if a community meets their liveability scale? The website explains that "AARP developed the Livability Index, a ground-breaking tool—now in its third year—that uses more than 50 national data sources and 60 indicators spread across seven categories to jump-start community conversations about livability and encourage action by consumers and policymakers alike.It turns out that many of the characteristics that make a community “livable” are the same across all ages: safety and security, affordable and appropriate housing and transportation, and the ability to live near family and friends who can be relied upon." The index looks at housing, environment, health, community engagement, employment, neighborhoods and transportation. How does your city fare?
BTW, this could be a really good exercise for students to do in their elder law course. The fall semester will be here before we know it!
Friday, June 29, 2018
A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging. She is examining what happens when struggling nursing home operations require intervention to protect existing residents. Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager. Ms. Brambila begins:
The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.
In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.
State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.
The management fee is paid by fines collected from nursing home facilities.
Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.
The average cost for managing these troubled homes exceeded $335,000.
There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers. Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota. According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.
For the full story, read "Pennsylvania to pay $475,000 for temporary nursing home manager." Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.
June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 28, 2018
Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy in 2012.
Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers. Judge Jane Magnus-Stinson observed, in ruling in favor of Ms. Vaughn, that
The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)