Sunday, October 8, 2017

Emergency Readiness of SNFs

Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary: 

Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.

These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.

Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.

Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.

The issue brief offers 7 recommendations including requiring  (1) emergency generators, (2) prior  coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.

 

October 8, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 5, 2017

Former Secretary of Commerce Penny Pritzker: On Her Early Business Career in "Senior Living" & Avoiding Conflicts of Interest

I'm a fan of early morning podcasts of high-profile interviews.  For me there is something about listening to them in dim light before my day gets fully started.  It allows me to fully "hear" little nuggets of information, ideas about innovations or even law-related gems.  

Recently I listened to the August 28, 2017 podcast of David Axelrod's interview of Penny Pritzker, who was Secretary of Commerce during the second term of President Obama.  I'd forgotten that Pritzker's early business career included a start-up with "Classic Residence by Hyatt," later rebranded as Vi, a form of high-end senior living communities, operated mostly in the "CCRC" model.  Pritzker talks about a family tradition of "graduating from law into business." From the interview transcript, where shes discusses her entry into the family business:

I went to law school [and] I went to business school [at Stanford]. I came back to Chicago and and arrived. And it wasn't obvious what I was going to do but I wanted I had seen my family build businesses and I figured I wanted to do that too. And but it was an environment where there were no women. There were no women, there were no women vice presidents, there were no women in the organization. There was--there were no women parking in the parking garage if you will know women eating in the dining room if you will. And so it required me to I think find what I call the white space. I had to figure out where did I fit. And I felt that the place that I fit best was to really actually create new businesses. And so I became an entrepreneur within two years of arriving back in Chicago. I--there was talk of starting a new business in senior living and I basically said to my uncle I want to do that. And that's how I started my first business which was Classic Residence by Hyatt. And it was you know I was 27 years old. I had a terrific education and I had worked during school as well but there was so much I needed to learn and I had to learn by doing. And I made a ton of mistakes. I didn't know. Some of the people I hired were wrong, some of the decisions I made were wrong. 

She speaks candidly about the experience, admitting "we didn't really know what we were doing and we weren't sure exactly what the market [of senior living] wanted or needed."  At one point, she realized a $40 billion family investment in her business was at risk, and she talked to the then-patriarch of the Pritzker family, her uncle Jay Pritzker , and said that "if we can't turn this around in six months you should fire me and we should liquidate."  

Continue reading

October 5, 2017 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Wednesday, September 27, 2017

"Assisted Living Compare" Database in the Works?

The federal Medicare website offers a"Nursing Home Compare" website, which provides useful information on Medicare and Medicaid certified skilled care facilities across the country.  The available information includes: 

  • How nursing homes have performed on health and fire safety inspections
  • How the nursing home is staffed with nurses and other healthcare providers
  • How well nursing homes care for their residents

But, as we write about so often on this Blog, the majority of senior care occurs outside of nursing homes, with exponential growth in Assisted Living facilities.  Thus, it is interesting to hear that a commercial entity has announced it will soon offer access to data on assisted living places.  From McKnight's Senior Living News:  

“For the first time, the seniors housing industry will have a single source for assisted living asset analysis, reputation evaluation, portfolio monitoring, operator benchmarking, clinical analytics, market analysis and consumer education, with a key benefit being that the burden is not on assisted living providers to submit the data,” Arick Morton, CEO of VisionLTC, said in a statement.

 

“We've categorized the citations so you can see where areas of concerns are within the different assisted living facilities based on some of the citation standardization work that we've done,” Jessica Curtis, Formation Healthcare Group vice president of clinical systems and analytics, told McKnight's Senior Living.

Unfortunately, in the short run, it appears the database will be marketed exclusively to commercial players, including "operators, real estate investment trusts, lenders, investment groups and clients [of developer Formation Healthcare Group] who have expressed interest."  Curtis explained:  

“It will be a paid subscription-type service for them,” Curtis said. “As a future development opportunity, we certainly see the need for this type of information to be available for consumers and the general public, and so that may be a consideration for a future version,” she added.

For more, read "Nursing Home Compare-Like Site For Assisted Living to Launch Next Month."

September 27, 2017 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Tuesday, September 26, 2017

Nursing Home Abuse: Reporting to Law Enforcement

Check out this updated policy brief, Policy Brief: Requirements for Reporting to Law Enforcement When There is a Suspicion of a Crime Against a Nursing Home Resident.  The Long Term Care Community Coalition  (as an aside, take a look at their cool url) released this updated brief with information about changes and 2017 updates

2017 Updates:
1. The potential fines for violations of the law are subject to adjustment for inflation. The fines indicated below are current as of September 2017.
2. New CMS guidelines for these (and other) requirements are in effect as of November 28,
2017. A summary of the guidelines for reporting can be found at the end of this brief. The
full federal Guidance can be found on the CMS website:

https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/GuidanceforLawsAndRegulations/Downloads/Advance-Appendix-PP-Including-Phase-2-.pdf.

The overview explains that

The law broadens and strengthens the requirements for crime reporting in all long term care
facilities (including Nursing Facilities, Skilled Nursing Facilities, LTC Hospices, and Intermediate Care Facilities ...) that receive $10,000 or more in federal funds per year. The facility must inform the individuals covered under the law - its employees, owners,
operators, managers, agents, and contractors - of their duty to report any "reasonable
suspicion" of a crime (as defined by local law) committed against a resident of the facility. After forming the suspicion, covered individuals have twenty-four hours to report the crime to both the State Survey Agency and to a local law enforcement agency. If the suspected crime resulted in physical harm to the resident, the report must be made within two hours.

The brief explains the policy requirements and offers recommendations for consumers, state agency folks and long term care facilities. There is also a summary of the regs as well as definitions of commonly used words.

The brief can be downloaded as a pdf here.

September 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases | Permalink | Comments (0)

Rental Housing and Seniors -- the Live-In Care-Giver Problem?

Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment.  The landlord was fully aware of the situation.  Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time.  However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.  

What's the problem?  When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her.  Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.

Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease.  In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment.  The landlord didn't want a "demanding" resident!

The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.  

I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care. 

 

September 26, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Thursday, September 21, 2017

The "Well-Meaning Friday Child" Syndrome and Long-Distance Caregiving


St._Nicholas_(serial)_(1873)_(14596944999)There's an old rhyme that's been running through my head lately, the one about Monday's child (who was fair of face) and so on.  In the rhyme, "Friday's child is loving and giving."

I like to think of myself as Friday's child, even as I confess I don't quite live up to the standard of being truly giving.  For example, I haven't changed jobs or given up my job to be a more direct caregiver for my parents. I'm the child who flies across the country on long-weekends to my parent's home town, and tries to demonstrate my loving and giving nature by fixing all of their problems.  I have the "well-meaning Friday child" syndrome.  And there are a lot of us out there; I'm often seated next to someone attempting this same care mission on red-eye airplane flights.

Mostly, this pattern tends to drive my folks and my sister, who lives about 30 minutes from my parents' home, a bit crazy.  I rationalize my behavior by telling myself, "They asked me to fix XYZ problem!" But doing so on the run is often a less-than-successful strategy.  When my father was alive and still at home, he used to respond to my arrival with an immediate question, "when are you leaving?"  I used to try to explain away that response by thinking, "he just wants to know so that he can get in an extra ride to the airport, one of his favorite outings."  But now my mom is asking me the same question and she doesn't enjoy airport rides.    

Over time, one of the things I've learned is that rather than trying to impose solutions, it's better to use these short trips to identify options.  For example, as it became clear (at least to me) that my father might not be able to stay at home for the rest of his life, even with round-the-clock assistance, I suggested to my mother that we make a long list of different types of care settings and visit one each time I was home.  Sometimes we even saw two spots.  Sometimes we made a second visit to a spot we'd looked at earlier. Eventually my mother, worn out and worn down by the care needs of her husband, called me and suggested it "was time" to select a spot, and she already knew which spot was the right one. That process took more than eight months of visits.  It meant my sister, my mom and I needed to be on the same team for this big change.

The spot Mom chose -- one of the first on our visit list -- wasn't the fanciest, but it proved to be perfect for Dad.  The first few weeks were rough on everyone, but Dad did settle in and sometimes, out of the blue, he would say, "This is a wonderful place, isn't it?" For him it was actually a better place because he had five safe acres of freedom to roam, rather than being trapped in a multi-storied house that made movement much more dangerous and him more anxious. He calmed down, my mom calmed down, my sister got some breathing space, and I relaxed a bit on those still-frequent weekend visits.

Elder Law attorneys know all about the well-meaning child, and they tend to keep the decks clear on Fridays for the meetings with "out-of-town" children, often with one or both parents in tow.  The experienced attorney knows how to find the balance between "rush" and "enough time," in order to help families make the best decisions for the future.    

September 21, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Housing | Permalink | Comments (0)

Tuesday, September 19, 2017

Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"

We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products.  For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.

Recently In Texas, two competitors have been arguing over the definition of assisted living.  

In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community.  Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.  

On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for  preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."

Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise.  Harbor hired a private investigator to pose as a prospective client for LTIL.  The investigator tape-recorded a sales representative for LTIL.  

Arguably, it  seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.

 During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . .  Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . .  She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.  

Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . .  Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help. 
 
One one level, the case demonstrates the level of competition that exists among companies marketing senior living properties to prospective residents.  Lots of providers are trying to be "the best choice" for aging adults.
 
But, on another level, the case shines a light on why states often do attempt to regulate senior care providers beyond the usual "nursing home" identity.
 
Without clear and enforceable rules about how a provider can market to the public, it seems likely that sales representatives could be tempted to fudge the line of what their facility offers, to match the prospective resident's desires about services and price.
 
Indeed, misrepresentation is at the heart of the allegations in the California class action case we discussed earlier this month, filed by care-needing residents against Brookdale Senor Living's "assisted living" operations, alleging unfair trade practices and consumer rights violations.  

September 19, 2017 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 18, 2017

Things to Watch for in ALF Contracts

Consumer Reports published an article that focuses on the terms of an ALF admissions contract.  Putting the Assisted Living Facility Contract Under a Microscope  starts with recommending that an elder law attorney review the contract before the client signs it.  The article lists 4 key areas to examine, including responsible party provisions, costs of care, mandatory arbitration clauses and grounds for discharge.  The article offers advice and things to look for within each of these areas.  Among others, the article quotes Hy Darling, current president of NAELA and Shirley Whitenack, former NAELA president.

September 18, 2017 in Consumer Information, Current Affairs, Housing, Other, State Statutes/Regulations | Permalink | Comments (0)

"Barn Door" Rule-Making and Disaster Response

Over the weekend, Florida Governor Rick Scott announced he was "directing" state agencies to "issue emergency rules to keep Floridians safe in health care facilities during emergencies."  Arguably, this an example of  locking the barn door after the horses have escaped.  On the other hand, especially with another hurricane already looming, certainly no political leader wants to be seen as doing nothing.

There are some important questions -- that can perhaps be translated into lessons -- emerging from the most recent tragedy with eight nursing home residents perishing from heat related complications in Broward County Florida after Hurricane Irma.  

1. Should States Mandate Specific Equipment?  For example, Governor Scott is seeking a rule that mandates "ample resources" including a "generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for a least 96-hours following a power outage."   It should be clear, certainly after Katrina (2005), Harvey (2017) and Irma (2017), that some of the biggest dangers of extreme weather events ares not just the wind or rain or fire or other immediate impact, but the consequences of loss of power or other critical resources.  

2. Can Inspectors Better Assure Compliance with Safeguards?  Governor Scott's demands focus not just on the care facilities' obligations, but on the role of state and local officials to have a system of checks and balances to increase the likelihood the safeguards are actually in place and operable, and not "just" a written plan for the future.

3.  What Safeguards Were Effective At Similarly Situated Facilities?  News articles report some push back from providers to Scott's measures, who seem to be arguing feasibility and cost. But, certainly there were providers, faced with the same challenges as the Broward County nursing home, who were successful in protecting their residents.  Perhaps the more important lesson to learn -- and learn quickly -- is what was affordable and effective?  

Also, I think that there are some questions that can be raised about whether and how family members and the larger community might be able to help as part of a plan for disaster preparedness.  Certainly not all, and perhaps not even most, families will be able to help in providing post-disaster assistance including temporary shelter.  But, I think at a minimum, families would want to know what steps they might take to be part of the safety plan and post-event response. 

 

September 18, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 14, 2017

Precedent? $1 Million Wrongful Death Award Upheld for Post-Hurricane Katrina Nursing Home Death

As investigations begin into the report of 8 deaths of residents at a single nursing home in Broward County Florida three days after the region was impacted by Hurricane Irma,  it occurred to me to look into post-Katrina legal proceedings involving nursing homes.   

It turns out that very recently,  in June 2017, the Louisiana Court of Appeals (4th Circuit) affirmed an award of $1,000,000 in damages for pain and suffering arising from one elderly woman's death at a nursing home four days after Hurricane Katrina hit New Orleans in August 2005.  The nursing home argued comparative fault on the part of the Corp of Engineers for its "negligent design, construction and maintenance of" flood control systems in the region.  The Court of Appeals rejected the nursing home's arguments regarding "non-party fault" (emphasis added below):

Following our de novo review of the proffered and record evidence regarding non-party fault, we cannot say that but-for the conduct of the Corps of Engineers, Ms. Robinette would not have died from heat stroke on the second floor of Lafon five days after the City of New Orleans had issued a mandatory evacuation order.
 
The record shows that flooding at Lafon was not the cause-in-fact of Ms. Robinette's death. Only one foot of water entered the building, and that water receded quickly. Ms. Robinette was not harmed by the flood water. Ms. Robinette's cause of death was heat stroke and dehydration due to her exposure to sweltering heat for four days. And Ms. Robinette's exposure to those extreme heat conditions was caused by Lafon's refusal to follow its own Evacuation Plan, and by the inadequacy of Lafon's backup emergency power generator. But for Lafon's substandard conduct, Ms. Robinette would not have succumbed to heat stroke caused by the lack of electrical power.
 
Because the Corps of Engineers' conduct was not the cause-in-fact of Ms. Robinette's death, we find no fault by the Corps.
 
Note that it did not take a "federal regulation" for the  Louisiana court to recognize a duty to have operable back-up systems.  
 
For the court's detailed discussion of legal obligations connected to emergency preparedness, even in the face of the most extreme weather events, see Robinette v. Lafon Nursing Facility of the Holy Family, 2017 WL 2703943, __ So. 3d __ (La. App. 4 Cir. 6/22/17).  
 
Other news reports provide additional historical details, including the report  that 22 residents of the Lafon nursing home died in Katrina's aftermath, while 35 residents drowned at another nursing home in an adjacent Louisiana Parish.  
 
These human stories underline what my colleague Professor Becky Morgan has been emphasizing in the days leading up to Hurricane Irma, that the decision to shelter older adults in place -- or evacuate -- are important, challenging, and subject to second-guessing.  

September 14, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 13, 2017

The Critical Importance of A.C. for Emergency Preparedness

A couple of years ago, I was present when my father's dementia care facility -- a licensed assisted living community -- was doing a test of part of their emergency preparedness plan.  The staged "emergency" for that particular test was "loss of air-conditioning," which for most of the year in Arizona and other locations in the south and southwest is a serious concern.  With climate change, heat and air-conditioning systems are going to be even more critical in the future.

I was impressed that even without back-up generators, the facility had both a short-term and long-range plan. The long-term plan required staged evacuation to other locations.  Of course, to be effective, any evacuation would depend on the "other" locations having working power systems, something that can't be certain in a large scale weather or similar emergency.  

Sadly, as reported in the New York Times on September 13, following the damage caused by Hurricane Irma, there were several deaths at a long-term care facility near the coast in southeastern Florida.  The rapidly developing story suggests that as many as eight deaths were tied to loss of air-conditioning, although not a complete loss of power to the facility. It is too early to know all of the relevant facts.  But, what about the law?  The NYT article notes that:  

Florida requires nursing homes to have procedures to ensure emergency power in a disaster as well as food, water, staffing and 72 hours of supplies. A new federal rule, which comes into effect in November, adds that whatever the alternative source of energy is, it must be capable of maintaining temperatures that protect residents’ health and safety.

Does the federal regulation mandate emergency sources of air-conditioning? Although the highlighted language in the NYT article suggests the new federal rule "comes into effect" in November of this year, my read of the regulation says the effective date was November 15, 2016 -- in other words, last year.

***

9/14/17 Correction to above paragraph:  It was bothering me that I saw more than one news article describing the Emergency Preparedness rule as not taking effect until November of this year.  The "effective date" of the Rule is clearly November 15, 2016 -- but, the New York Times is correct -- Long Term Care facilities have "until" November 15, 2017 to "implement" their preparedness plans, including any plan for maintaining safe temperatures.   The implementation deadline was in a previous version of the rule, not the version of the rule actually made "effective" on November 15, 2016.  Another lesson for me in the need for careful reading of regulations!

***

Perhaps more importantly, here's the language of the federal regulation, at 42 C.F.R Section 483.73, governing emergency preparedness at LTC facilities:

The LTC facility must develop and implement emergency preparedness policies and procedures, based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, and the communication plan at paragraph (c) of this section. The policies and procedures must be reviewed and updated at least annually. At a minimum, the policies and procedures must address the following:
 
(1) The provision of subsistence needs for staff and residents, whether they evacuate or shelter in place, include, but are not limited to the following:
    (i) Food, water, medical, and pharmaceutical supplies.
    (ii) Alternate sources of energy to maintain
        (A) Temperatures to protect resident health and safety and for the safe and sanitary storage of provisions;     
        (B) Emergency lighting;
        (C) Fire detection, extinguishing, and alarm systems; and
        (D) Sewage and waste disposal.
Does this regulation require alternative sources of air-conditioning or heat -- as necessary to "protect resident health and safety" -- or does it merely require a "policy and procedure"?  I suspect this language might be a legal issue in any post-Irma proceedings.  
 
This is still a developing story, with state authorities conducting investigations.  For more, see this NPR story

September 13, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 12, 2017

Disaster Planning and Services on Our Minds

With Irma in Florida's rear view mirror (and not a moment too soon), many are focused on what, if anything, should be done differently  next time.

For us as attorneys, we should be sure to tell our clients about the importance of having a disaster plan. For clients living elsewhere, whether a long-term care facility or housing specifically for elders, they should be advised to ask a lot of questions. Does the facility have a disaster plan? Get a copy of it.  What services does the facility provide to help residents evacuate? In what evacuation zone is the facility located? Does the facility have a back-up generator in the event of a power outage? How does the facility balance having adequate staff on site before, during and after the disaster while simultaneously allowing staff to prepare for the disaster?  Does the facility's insurance policy cover property of residents? What services does the facility provide to help residents return after the disaster? What happens if the facility is now uninhabitable?  Does the admissions contract provide for any return of the resident's money (this may be more applicable to a CCRC than a SNF or apartment). Will the facility help residents find other suitable housing? What other items would you add to the list?

As part of the news coverage surrounding Irma, the Washington Post ran a story about the risks of evacuating elders. Moving Florida’s many seniors out of Irma’s path has unique risks discusses the research that has been done on the stress of evacuations on elders, noting that some evacuees will die from the stress of evacuation.  Whether to go or stay is akin to rolling the dice. On the one hand, those in the path have plenty of advance notice of the approaching storm, but as seen with Irma, the track can (and does) change, so no one knows where it will hit. 

If you stay you have risks. If you go, you have risks.  As one person quoted in the Washington Post article noted, "[t]his is one of those classic cases of damned if you do, damned if you don’t. It’s a very difficult decision: When you evacuate, there is an inherent body count for frail, older adults...”   Because these folks are frail, they need to be evacuated earlier than others might, and based on lessons learned from Andrew and Katrina, there may be more pressure from officials for facilities to evacuate their residents rather than to stay put to weather the storm.  Speaking from personal experience, the wait is stressful. It seems to take a long time for the storm to pass over once the go-no go time has passed. Then afterwards, there's the issue of utilities, clean up, services and supplies.

The media aren't the only ones focused on the issues of elders in the path of disasters. The Senate Committee on Aging has scheduled a hearing for September 20, 2017 at 9:00 a.m. on "Disaster Preparedness and Response: The Special Needs of Older Americans"  

Stay tuned.

September 12, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other | Permalink | Comments (0)

Frustrated Expectations and Costs-of-Care in Assisted Living

We often write on this Blog about concerns or even scandals in "nursing home" care for seniors. But, increasingly senior care spans a wide spectrum of formats and identities, and the SNFs of old, both good and bad, are increasingly outnumbered by newer names.  "Assisted Living" facilities -- traditionally positioned somewhere between skilled care and independent living -- are now often the target of concerns and lawsuits.

Reading the complaint in the latest suit, a class action filed in federal court in July 2017 in California against Brookdale Senior Living Inc. and Brookdale Senior Living Communities, Inc., I can see a central frustration, regardless of any issue of poor or negligent care.  Brookdale is one of the largest, if not the largest providers of assisted living, especially after it acquired another large assisted living operator, Emeritus.  The named individual plaintiffs, who describe their extensive impairments, including physical and mental disabilities, also describe their expectations about receiving appropriate care in "assisted living" at an affordable rate.  They allege, for example:

Assisted Living facilities are intended to provide a level of care appropriate for those who are unable to live by themselves but who do not have medical conditions requiring more extensive nursing care.

 

In recent years, [Defendant] has increasingly been accepting and retaining more residents with conditions and care needs that were once handled almost exclusively in skilled nursing facilities.  This has allowed [Defendant] to increase not only the potential resident pool but also the amounts of money charged to residents and/or their family members.

The plaintiffs complain that rates charged, alleged to range between "approximately $4,000 to $10,000 per person per month," increased at a rate of  6% to 7% percent per year in each of the last two years, at the same time that staffing levels dropped to a critical, allegedly unsafe level.  

At the core of the complaint is the frustration that residents are not being provided the services they need.  The legal theories include violation of the Americans with Disabilities Act, state civil rights and consumer protection laws, unfair trade practices laws, and California's Elder Financial Abuse laws, all leading to what I see as a fundamental question:  

Can Assisted Living operators be held liable for failure to provide skilled care to residents they allegedly "know" need such care, or is the less-than-skilled label and license to operate a defense against such liability?

The Brookdale defendants deny the allegations of fault.    For more, see  Largest Assisted Living Chain in U.S. Sued for Poor Care of Elderly from California Healthline.

 

September 12, 2017 in Consumer Information, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 11, 2017

Hurricane Irma and Florida: How Will Elders Fare?

Sitting at home watching the storm tracker, and being right in the path of Irma, I wondered what efforts are being taken to protect Florida's elders, so we don't see a picture similar to that we saw from Harvey. I'm not the only one wondering about this. The New York Times ran an article the day before Irma made landfall on the continental US. Long a Refuge for the Elderly, Florida is Now a Place of Danger  describes the demographics, 20% of South Florida's residents are over 65 and in some counties, a significant number are over 75.  The numbers, as well as the variations in health, makes evacuation and care for this part of Florida's population especially challenging when a hurricane arrives.  Add to that the fact that many elders who retire to Florida don't have  support of friends or family in Florida.  Not every elder will evacuate and don't forget that the caregivers need to take care of their own homes and families at some point. As well, first responders notice everyone that once winds reach a certain speed, they will not respond to calls for help.  Then once the storm passes, getting services and utilities restored becomes another challenge. For some, delays in having power can be life-threatening.  Stay tuned and wish all of us down here well.

 

 

September 11, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other | Permalink | Comments (0)

Monday, August 28, 2017

Reverse Mortgage Resources

The Consumer Financial Protection Bureau has released three resources on reverse mortgages:

1.  https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201708_cfpb_costs-and-risks-of-using-reverse-mortgage-to-delay-collecting-ss.pdf on using a reverse mortgage to delay taking SSA retirement. The issue brief, The costs and risks of using a reverse mortgage to delay collecting Social Security runs 27 pages and is downloadable as a pdf. As the conclusion explains

 

We find that borrowing a reverse mortgage loan to get an increased Social Security benefit carries significant costs that generally exceed the additional lifetime amount gained from delaying Social Security. In addition, the amount that a consumer will need to borrow from a reverse mortgage loan to delay claiming Social Security benefits could negatively affect the consumer’s ability to move or use their home equity to meet a large expense later in life.

For consumers who have the option, working past age 62 is usually a less costly way to increase their monthly Social Security benefit than borrowing from a reverse mortgage.40 The extra years of work often provide people more time to save for retirement and pay off debts. The extra years of work may also result in an increase in Social Security benefits—separate from the increase that arises from deferring the start of benefits—by replacing years with low or no earnings from the person’s earnings record.41 Consumers may also consider other options to increase their Social Security benefit, such as coordinating their claiming decision with their spouses.

As consumers consider borrowing a reverse mortgage loan in order to delay claiming Social Security benefits or defer withdrawing funds from retirement savings, it is important for them to be aware of the risks and costs associated with this strategy. This is especially true for consumers whose primary source of income is Social Security and whose main asset is their home. For those consumers, the costs of a reverse mortgage loan will likely exceed the lifetime amount of money gained from an increased Social Security benefit, which in turn may threaten their financial security later in life.

The second resource is a discussion guide on reverse mortgages a twenty-four page pdf that provides "an overview of many key concepts of reverse mortgages." The guide is organized by the requirements for a reverse mortgage and includes illustrations and graphics for each. This is a very helpful tool!

The final resource is a 2:06 video on YouTube that gives a cursory overview of the ins and outs of reverse mortgages.

The agency's blog also discusses this new resources. Add these to your collection of resources!

 

August 28, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing, Retirement, Social Security | Permalink | Comments (0)

Monday, August 21, 2017

Affordable & Accessible Community-Based Housing for Vulnerable Adults

A new publication is available from the National Academies Press. Developing Affordable and  Accessible Community-Based  Housing for Vulnerable Adults: PROCEEDINGS OF A WORKSHOP is available for download as a pdf or for purchase as a print copy.   Here is an excerpt from the introduction

Accessible and affordable housing can enable community living,2 maximize independence, and promote health for vulnerable populations. However, the United States faces a shortage of affordable and accessible housing for vulnerable low-income older adults and individuals living with disabilities. This shortage is expected to grow over the coming years given the population shifts leading to greater numbers of older adults and of individuals living with disabilities.

Housing is a social determinant of health and has direct effects on health outcomes, but this relationship has not been thoroughly investigated. To better understand the importance of affordable and accessible housing for older adults and people with disabilities, the barriers to providing this housing, the design principles for making housing accessible for these individuals, and the features of programs and policies that successfully provide affordable and accessible housing that supports community living for older adults and people with disabilities ....

The forum meets to discuss how to support independence and community living for people with disabilities and older adults. The roundtable promotes health equity and the elimination of health disparities by advancing the visibility and understanding of the inequities in health and health care among racial and ethnic populations; by amplifying research, policy, and community-centered programs; and by catalyzing the emergence of new leaders, partners, and stakeholders.

The book runs 108 pages and the pdf is a free download.

August 21, 2017 in Books, Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing | Permalink | Comments (0)

Thursday, August 10, 2017

GAO Report on Federal Low-Income Programs

The GAO has issued a report that examines various federal programs for low-income individuals. Federal Low-Income Programs: Eligibility and Benefits Differ for Selected Programs Due to Complex and Varied Rules  offers the following findings

Six key federally funded programs for low-income people vary significantly with regard to who is eligible, how income is counted and the maximum income applicants may have to be eligible, and the benefits provided. In fiscal year 2015, the most current data available, the federal government spent nearly $540 billion on benefits for these six programs—the Earned Income Tax Credit (EITC), Medicaid, the Housing Choice Voucher program, Supplemental Nutrition Assistance Program (SNAP), Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). The target population for each of these programs differs, for example, people who are elderly or disabled or who have dependent children. Further, some programs have conditions for continued eligibility, such as participation in work activities under TANF. The six programs also vary in what income is and is not counted when determining an applicant's eligibility. For example, certain programs, such as SNAP, disregard a portion of earned income, while others do not. The maximum amount of income an applicant may have and still be eligible for benefits, which is determined for some programs at the federal level and for others at the state or local level, also differs significantly. As of December 2016, this amount ranged from $5,359 per month for one state's Medicaid program to $0 per month in one state for TANF cash assistance, for a single parent with two children. Benefit levels also differed across the six selected programs, with average monthly benefits for these programs ranging in fiscal year 2015 from $258 for SNAP to $626 for Housing Choice Vouchers, and four of the six programs adjust benefits annually.Legal, administrative, and financial constraints pose challenges to efforts to streamline varying eligibility rules for federal low-income programs, according to GAO's current and previous work. A key challenge is that the programs are authorized by different federal statutes enacted at different times in response to differing circumstances. Other laws, such as appropriations laws, can also have an impact on federal programs and their rules. As a result, streamlining eligibility rules would require changing many laws and coordination among a broad set of lawmakers and congressional committees. A further challenge is that a different federal agency or office administers each program GAO reviewed. For some of these programs, such as TANF, state governments also establish some program rules, making it more difficult to streamline rules at the federal level within or across these programs. Finally, financial constraints may also affect efforts to streamline program rules. For example, if rule changes raise the income eligibility limit in a program, more people may become eligible and that program's costs may increase. Despite these challenges, Congress, federal agencies, and states have taken some steps to streamline program administration and rules, such as by making greater use of data-sharing where permitted by federal law and aligning programs' applications and eligibility determination processes. For example, SSI recipients in most states are automatically eligible for Medicaid, and GAO previously reported that some states have integrated the SNAP eligibility process with other low-income programs, such as through combined applications and common eligibility workers.

The 56 page report is downloadable here as a pdf.  The one page highlights is available here.

August 10, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Food and Drink, Housing, Medicaid | Permalink | Comments (0)

Wednesday, August 9, 2017

Tragic Deaths of Long-Married Couple Underscore Family Dilemmas

The Washington Post carried a recent story by Samantha Schmidt on the tragedy that befell the Tarnowski family in Minnesota when Mary, age 78, and Ron, age 81, somehow wound up stranded with their car on a remote rural trail.  Sadly, they both perished, with heat and dehydration likely factors in their deaths.  

One element of the story has attracted a lot of reader attention -- the report that Ron Tarnowski, who had been his wife's primary caregiver for more than 35 years, was "showing signs of early-stage dementia" in recent years.   Implications from this label raise questions for many. 

From the article, a facebook page, and the obituary, it is apparent that the couple's two sons were very caring and attentive.  One son had built them a home "adjacent to his own so he could keep an eye on them."  That son's wife had given his mother a bath and cooked breakfast for the couple earlier on the day they went missing, and the fact that they were missing was reported the very same day.  Despite the sons' attentiveness, and the all-out efforts of authorities and volunteers to locate the missing couple, the search lasted eight days.

I read with interest the comments to the story posted on-line at the Washington Post website. I expected there would be "flamers" and shaming, so typical of many on-line comment websites. But for the most part, the readers showed kindness and empathy, especially as they told their own stories of struggles to balance protection with respect, attempting to preserve autonomy of beloved family members who are aging.  

Significantly, many readers addressed the potential for modern technology in the form of automated trackers on cars and cell phones to help avoid, if not completely prevent such a tragedy. 

August 9, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Friday, July 21, 2017

Filial Friday: Elderly NJ Parents Held Not Liable to Pay Care for Disabled Adult Son in PA

In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.  

The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled.  If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."

The parents and the son were all, as stipulated to the court, residents of New Jersey.  New Jersey public funding paid from the son's  specialized care needs at Melmark's Pennsylvania facility for some 11 years.  However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement.  Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.

Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances."  The courts rejected application of Pennsylvania's law as controlling.

This is a tough case, with hard-line positions on the law staked out by both sides.  One cannot expect facilities to provide quality care for free.  On the other side, one can empathize with families who face limited local care choices and huge costs.

Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own.  Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.  

July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, July 18, 2017

Nursing Home Quality of Care An Ongoing Issue for Some Facilities

I read this article last week in the New York Times (also published by the Kaiser Health News), the topic of which is something we should consider seriously.  Poor Patient Care at Many Nursing Homes Despite Stricter Oversight discusses Medicare's Special Focus status.

While special focus status is one of the federal government’s strictest forms of oversight, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to an analysis of federal health inspection data. Of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.

The article highlights some individuals' experiences, with the basis of the article concerning the Special Focus program. 

Special focus facility status is reserved for the poorest-performing facilities out of more than 15,000 skilled nursing homes. The Centers for Medicare and Medicaid Services, or C.M.S., assign each state a set number of slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.

More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, because of federal budget cuts. This year, the $2.6 million budget allows only 88 nursing homes to receive the designation, though regulators identified 435 as warranting scrutiny.

The article also discusses lapses by those facilities once on the watch list, how a facility earns its way off the watch list and how long it typically takes to do so and the staffing ratios in such facilities.

Background information about the special focus initiative can be found on the CMS website. You can find the list of special focus facilities on CMS website. For example, here is the one published in June of 2017.

July 18, 2017 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)