Tuesday, July 26, 2016

As the Suburbs Gray....

My friend and colleague, Professor Mark Bauer sent me this recent article (thank you!) Can car-centric suburbs adjust to aging Baby Boomers?  We want to age in place, but neither or houses, or their locations, are always designed for us to do that.

In fact, the American suburbs, built for returning GIs and their burgeoning families, are already aging. In 1950, only 7.4 percent of suburban residents were 65 and older. By 2014, it was 14.5 percent. It will rise dramatically in the coming decades, with the graying of 75.4 million baby boomers mostly living in suburbia.

But car-centric suburban neighborhoods with multilevel homes and scarce sidewalks are a poor match for people who can’t climb stairs or drive a car.

“Most [boomers] are in a state of denial about what really is possible and what’s reasonable for them as they age,” said John Feather, a gerontologist and the CEO of Grantmakers in Aging, a national association of foundations for seniors.

Staying put is not without costs, and not just for retrofitting the house to make it accessible. Instead, the article notes,  "[r]etirees who want to stay in the suburbs will have to cover the rising costs of property taxes and utilities, and they may have to shell out big sums to retrofit their homes if they become frail or disabled. One study found that it can cost $800 to $1,200 to widen a doorway to accommodate a wheelchair, $1,600 to $3,200 for a ramp, and up to $12,000 for a stair lift. Major remodeling, such as adding first-floor bedrooms or bathrooms, can cost much more." 

Then of course, there is the issue of transportation. Out in the suburbs, we may not be able to walk to the stores and services we need, and some of us may no longer be able to drive.  Transportation is critical and we all know about Americans' love of automobiles.  So, what's the answer?

Even if a suburb has a regional transit system, the routes are often limited and geared to help commuters get to and from work in the city. The nearest bus or train stop may be miles from the subdivisions where aging boomers live. And while the Americans with Disabilities Act requires most public transit systems to provide pickup “paratransit” for people with disabilities who are unable to use regular bus or train services, that applies only to people who meet certain criteria.

One alternative is transportation services overseen by a federally funded network of local agencies that offer services and support to older adults to help them age at home and in the community. In many regions, these Area Agencies on Aging contract with local providers that offer door-to-door van services to older adults who qualify. But those programs, often geared to taking seniors to medical appointments and grocery stores, usually offer little flexibility and require clients to make reservations.

The article examines whether such an option will work for Boomers and what local governments need to do to prepare for this demographic change in suburbia.  Of course, some elders choose to move to communities that provide the services and amenities they want and the article discusses these briefly.

But what about transportation?  Doesn't that remain the elephant in the room?  So, off on a tangent...I read another article this morning about Uber selling passes in NY for ride-sharing. Lyft is partnering with GM so drivers can rent cars.   Are we going to see ride-sharing services as an option (or solution) for elders who have had to give up driving? But will this only be an option for those elders who can afford ride-sharing services?  I'm still hopeful about self-driving cars....

July 26, 2016 in Consumer Information, Current Affairs, Housing, Other | Permalink | Comments (0)

Monday, July 25, 2016

19th Annual Elder Law Institute in Pennsylvania Includes Trend Analysis in Senior Living


19th Pennsylvania Elder Law InstituteLast week, Lancaster Pennsylvania was host to the 19th Annual Elder Law Institute, co-sponsored by the Pennsylvania Bar Institute and the Pennsylvania Bar Association's Elder Law Section.  As the image of the two, fat volumes of course materials demonstrates, there was a lot of content for  participants to digest. More than 400 professionals attended,not counting walk-ins.  (And yes, the course materials will be available for purchase eventually, from the PBI catalog here.) 

I had the privilege of welcoming two new speakers to the Pennsylvania conference, Stephen J. Maag, J.D., Director of Residential Communities for LeadingAge and Brad C. Breeding, President of My LifeSite.  Both speakers addressed options available for senior living, and focused on trends affecting Continuing Care Retirement Communities (CCRCs), now also known as Life Plan Communities.

Steve noted that with close to 2,000 communities across the nation identifying under the CCRC or Life Plan label, a majority are "still" nonprofit, especially in so-called "Type A" operations, but that there is clearly a trend in the direction of change to "for profit" ownership or management. Communities are coping with what he termed "unprecedented" change on many fronts, including changing consumer demographics, the impact of health care reform, and use of technology that can affect or delay timing of decisions to move into a Life Plan Community.  

Brad outlined the development of his company as a site for comparative information for consumers considering CCRC or Life Plan communities.  The company has a data bank with detailed, comparative information on over 400 communities, offering consumers a fee-paid option of getting side-by-side statistics on contract options, pricing, services available and more.  But he also said that collecting the information is not easy, as some state regulators, including Pennsylvania, do not "share" information in a transparent way.   Remember Medicare.gov's Nursing Home Compare?  Brad's company is working to provide consumers with comparative information beyond that narrow focus on skilled nursing care.  One of the hot topics Brad identified is the extent to which consumers can use "long-term care insurance" in the CCRC setting, and we all discussed whether such insurance should be paying a pro-rata share of entrance fees, especially in Type A life-care contracts. 

My special thanks to Steve and Brad for traveling from D.C. and North Carolina, respectively, to share their knowledge and predictions. 

July 25, 2016 in Books, Health Care/Long Term Care, Housing, Programs/CLEs | Permalink | Comments (0)

Sunday, July 17, 2016

Fall Prevention: Personal Attention vs. Assistive Alerts?

Do alarms lead nurses in SNFs to interact less with residents? Do the alarms help prevent falls? According to a New York Times article from July 2, 2016,  there is a movement away from "things" to help with falls and toward an emphasis on human care.  Nursing Homes Phasing Out Alarms to Reduce Falls explains there is "a nationwide movement to phase out personal alarms and other long-used fall prevention measures in favor of more proactive, attentive care. Without alarms, nurses have to better learn residents' routines and accommodate their needs before they try to stand up and do it themselves." Over time prevention moved from restraints to alarms, floor mats, etc. and now prevention is moving from those to personal attention. This change is based on " a growing body of evidence indicates alarms and other measures, such as fall mats and lowered beds, do little to prevent falls and can instead contribute to falls by startling residents, creating an uneven floor surface and instilling complacency in staff."  

According to the article there are those who are still using alarms and it will take some time for the change to be more widespread. As one expert noted in the article, using an alarm doesn't prevent a fall. "Going alarm-free isn't yet possible for every nursing home, but it's generally becoming a best practice as nursing facilities work to create the most home-like setting for people who live there, according to John Sauer, executive director of LeadingAge Wisconsin, a network of nonprofit long-term care organizations." As one expert noted in the article, using an alarm doesn't prevent a fall.

It seems that more personal care will be a great thing-but will the facilities have enough staff to help residents? We'll have to wait and see...

July 17, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, July 6, 2016

Residents Offer Their Perspectives on Three CCRC "Sales" in New Jersey

In New Jersey, ORANJ is an organization for residents of "continuing care retirement communities" (or CCRCs, also sometimes known as "Life Plan Communities," following a LeadingAge marketing study and plan announced in November 2015). Founded in May 1991, members recently celebrated their 25th anniversary.  In a summer 2016 newsletter, called, appropriately ORANJ Tree, residents from three communities reported on major changes in ownership of their facilities, and how such changes can affect community moral and future prospects.  The CCRCs discussed were:

  • 2016: Cadbury at Cherry Hill (reporting a new ownership is part of a conversion from nonprofit status to for-profit)
  • 2016: Franciscan Oaks
  • 2013: Fountains at Cedar Parke

In my observation, these New Jersey transactions, especially a conversion from nonprofit to for-profit, are part of a larger, national picture of communities struggling for identity in a competitive senior living market.

July 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Property Management, Retirement | Permalink | Comments (0)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!

 

July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Friday, July 1, 2016

A Senior "Airbnb" of Sorts?

The success of Airbnb and other types of vacation home sharing services seems to be particularly useful to a certain segment of the population (here's a hint-this is the elder law prof  blog). The New York Times ran an article about elders renting rooms in their homes through these vacation home sharing services.  Renting Rooms to Travelers Can Be a Source of Income Later in Life explains how this has become a source of income for some elders. In fact, "Airbnb, in a 2015 study, identified people over 60 as the fastest-growing cohort of its hosts, increasing by 102 percent that year, compared to its overall growth rate in the United States of 85 percent. Worldwide, the company estimates that about 260,000 of its roughly two million listings are offered by hosts 60 and older. Of those, 64 percent are women. (The company doesn’t track marital status.)" The article mentions the various businesses that offer this service and gives a sense of how they work.

Of course, there are pros and cons to opening up one's home to strangers, as the article notes, as well as some upfront costs to prepare one's home for "guests." For some, according to the article, renting out rooms provides a nice additional income.  Interesting concept.

July 1, 2016 in Consumer Information, Current Affairs, Housing | Permalink | Comments (1)

Wednesday, June 15, 2016

Elder Tech: A Report to the President

We've blogged on a number of occasions about the "elder tech revolution" and the technology competency of elders.  We're not the only ones watching this issue. In fact, the President's Council of Advisors on Science and Technology issued a report to the President in March of this year. Report to the President Independence, Technology and Connection in Older Age is a detailed look at various issues and technologies.  The executive summary sets the stage

The U.S. population is getting older, and Americans are living longer, on average, than they ever have before. As they age, people are healthier and more active than the generations before them and have fewer functional limitations such as difficulty walking or blindness. Studies show that people are happier on average as they advance into their later decades and enjoy high levels of accumulated knowledge and experience.

Getting older is a time of social, emotional, mental, and physical change. Retirement might change how a person interacts socially every day, affecting a person’s mood and well-being. Cognitive aging—the normal process of cognitive change as a person gets older—can begin, or a permanent change in physical function may arise. Technology offers a path for people who are navigating these changes potentially to prevent or minimize the risks associated with them and to enhance people’s ability to live their lives fully. We, the President’s Council of Advisors on Science and Technology (PCAST), sought to identify technologies and policies that will maximize the independence, productivity, and engagement of Americans in their later years.

 

The Committee focused on 4 areas of aging: physical and cognitive changes, hearing loss and lack of social interaction. The report contains "cross-cutting recommendations" as well as area-specific recommendations. The cross-cutting recommendations include federal support and coordination, widespread internet access, adoption of monitoring technology, and encouraging research to develop more innovation. There are 12 area-specific recommendations.

The blog post about the report is available here.

 

June 15, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Web/Tech | Permalink | Comments (0)

Monday, June 13, 2016

HUD Supportive Housing

A new report from the GAO covers funding of HUD's supportive housing program. Housing for Special Needs: Funding for HUD's Supportive Housing Programs, GAO Report #16-424 was released on May 31, 2016.  The GAO findings are:

Until program funding for new development ceased in fiscal year 2012, the Department of Housing and Urban Development (HUD) used a two-phase process to allocate and award capital advances for Section 202 Supportive Housing for the Elderly (Section 202) and Section 811 Supportive Housing for Persons with Disabilities (Section 811). First, HUD headquarters allocated the amount of appropriated funds for capital advances to each of the 18 regional offices using a funding formula, which accounted for regional housing needs and cost characteristics. Funding was further divided among 52 local offices using a set-aside formula and was also split between metropolitan and nonmetropolitan areas for Section 202. In 2010, HUD eliminated the set-aside which had guaranteed a minimum amount of funding for each local field office. The process for making capital advance awards did not change, but HUD was better able fund properties at a higher level. Second, applicants submitted applications to the applicable HUD regional office, and staff from these offices evaluated and scored applications based on various criteria, including capacity to provide housing and ability to secure funding from other sources. Applicants in each regional office were ranked highest to lowest and funded in that order. Any residual funds that were not sufficient to fund the next project in rank order were pooled nationwide and HUD headquarters used a national ranking to fund additional projects.

Most but not all states (including the District of Columbia and Puerto Rico) had applicants that received capital advances for Section 202 and Section 811 in fiscal years 2008 through 2011. GAO found that some states had applicants that received capital advances in each of the years reviewed, while other states did not. In the period reviewed, four states had no applicants that received Section 202 capital advance awards, and eight states had no applicants that received Section 811 capital advance awards. HUD officials cited several reasons applicants from some states may not have received funding during this period, including applications that were submitted may have been ineligible or higher-scoring applications from other states may have been selected instead. The capital advance amounts varied. For Section 202, total capital advance amounts for fiscal years 2008-2011 for states that received at least one award ranged from less than $24 million to more than $75 million. For Section 811, total capital advance amounts for fiscal years 2008-2011 for states that received at least one capital advance award ranged from less than $4 million to more than $15 million.

A pdf of the full report is available here.

June 13, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing | Permalink | Comments (0)

Thursday, June 9, 2016

Old and Homeless

Sometimes we run into stories that really really are sad.  This story in the New York Times is sad. Imagine being old and homeless, whether recently homeless or homeless for a long time. Think about the struggles one has in being homeless. Compound those struggles with the challenges faced by someone who has mobility issues or physical problems identified with being older. Old and on the Street: The Graying of America’s Homeless is an in-depth story that ran on May 31, 2016 and notes [t]he emergence of an older homeless population is creating daunting challenges for social service agencies and governments already struggling to fight poverty.

They lean unsteadily on canes and walkers, or roll along the sidewalks of Skid Row here in beat-up wheelchairs, past soiled sleeping bags, swaying tents and piles of garbage. They wander the streets in tattered winter coats, even in the warmth of spring. They worry about the illnesses of age and how they will approach death without the help of children who long ago drifted from their lives.

Homelessness is not just an issue for elders, but it is an issue that is growing since all of us age. "The homeless in America are getting old... There were 306,000 people over 50 living on the streets in 2014, the most recent data available, a 20 percent jump since 2007, according to the Department of Housing and Urban Development. They now make up 31 percent of the nation’s homeless population."

There are the "recently" homeless some of whom lost jobs and others who can't afford a home on fixed-income, and then there are the long-term homeless.

Many older homeless people have been on the streets for almost a generation, analysts say, a legacy of the recessions of the late 1970s and early 1980s, federal housing cutbacks and an epidemic of crack cocaine. They bring with them a complicated history that may include a journey from prison to mental health clinic to rehabilitation center and back to the sidewalks.

The article notes the incidences of homelessness is somewhat geographic and is rising in the larger metropolitan areas.  The article features interviews with several  elders in California who are homeless.

How do cities respond to the challenges of individuals who are homeless, and especially those elders who are homeless? "The challenges faced ... have forced advocates for the homeless and government agencies to reconsider what kinds of services they need: It is not just a meal, a roof and rehabilitation anymore." 

Assign this article to your students and ask them to create a plan for their city to provide services. It should be an interesting class discussion.

June 9, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, June 8, 2016

Conversion of Senior Living Operations from Non-Profit to For-Profit - What are the Limits?

A recent New York Times article sheds light on a frequent topic I've encountered in my own research on the convergence of elder law, contract law, and nonprofit organizations law:  when will a nonprofit nursing home or similar senior living operation be "allowed" to convert or sell-off to a for-profit operation?  And what if the "real" plan is to convert to an entirely new type of for-profit operation? 

The potential for conversion appears to be the heart of a dispute over two nonprofit nursing homes in Manhattan, where State and City authorities are seeking to prevent their purchase by a for-profit company known as Allure Group.  From the New York Times:

Citing misrepresentations and broken promises, the New York State attorney general’s office is seeking to prevent the purchase of two nursing centers by a company that was involved in transactions that put a Manhattan nursing home in the hands of luxury condominium developers....

 

“Allure made clear and repeated promises to continue the operation of two nursing homes for the benefit of a vulnerable population — promises that proved to be false,” said Matt Mittenthal, a spokesman for the attorney general, referring to Rivington House and a nursing home bought by Allure in the Bedford-Stuyvesant section of Brooklyn, which were closed within a year of a court petition’s being filed. “Until we conclude our investigation, we will object to Allure buying additional nursing homes.”

 

In New York, any nonprofit seeking to sell its assets must petition a state court for approval; the attorney general reviews all such requests and can object if there are grounds to do so. The court has the final say....

For more, read New York Attorney General Seeks to Halt Sale of 2 Nursing Homes Amid Inquiries.

June 8, 2016 in Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 7, 2016

Florida Health Care Agency Revokes Nursing Home License at CCRC

We've reported earlier, including here and here, about recent financial and management issues at a Tampa, Florida continuing care retirement community that operates under the name of University Village. The latest event is the May 31, 2016 order of an administrative law judge that would uphold the decision of the Florida Agency for Health Care Administration to  revoke the license for operation of a skilled nursing facility at University Village..  

Many of the concerns appear to focus on the alleged action (or inaction) of an individual, John Bartle, who is described as holding various titles in the company that controls the CCRC's operations. At one point, the Administrative Law Judge made clear his view on Bartle's testimony:

The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible.

My thanks to Karen Miller, Esq. for sharing this unusual ruling.  

June 7, 2016 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management | Permalink | Comments (0)

Friday, June 3, 2016

Pew Research Center: The Demographics of Adult Children Living with Parents

The Pew Research Center reports that for the first time in the modern era, more adult children ages 18 through 34 are living with their parents than living in other arrangements:  

Broad demographic shifts in marital status, educational attainment and employment have transformed the way young adults in the U.S. are living, and a new Pew Research Center analysis of census data highlights the implications of these changes for the most basic element of their lives – where they call home. In 2014, for the first time in more than 130 years, adults ages 18 to 34 were slightly more likely to be living in their parents’ home than they were to be living with a spouse or partner in their own household.

It seems likely that this trend has long-range significance for both young adults and aging families.  

June 3, 2016 in Current Affairs, Housing, Statistics | Permalink | Comments (0)

Friday, May 27, 2016

Filial Friday: Are Filial Responsibility Laws a Sign of the (Aging) Times?

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.

May 27, 2016 in Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, May 26, 2016

Life Care Centers of America: Legal Updates

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." 

May 26, 2016 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, May 24, 2016

Texas Appellate Case Demonstrates Significance of Contract Terms for Continuing Care Eviction

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.  

May 24, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, May 15, 2016

HCR ManorCare to "Spin Off" Into "SpinCo"

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."   

May 15, 2016 in Consumer Information, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

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.  

May 13, 2016 in Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases | Permalink | Comments (0)

Tuesday, May 10, 2016

Nursing Home Resident Evictions Increase for "Problem" Residents

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.

May 10, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)

Monday, April 18, 2016

Arizona State University Announces Preliminary Plans for Affiliated CCRC

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.

 

April 18, 2016 in Health Care/Long Term Care, Housing, Property Management | Permalink | Comments (0)