Tuesday, August 14, 2018
Register now for a free webinar from the National Consumer Voice for Quality Long Term Care. The webinar is scheduled for September 5, 2018 at 2 edt. Here is some info about the webinar
Join this webinar to learn about sexual abuse in nursing homes. Presenters will discuss a variety of topics to help you recognize the signs of sexual abuse and immediately respond to it.
We will examine the full scope of sexual abuse in nursing homes, including: (1) its prevalence, (2) the physical and social signs of sexual abuse, (3) who is most at risk, and (4) who the perpetrators are. In addition, you will learn the protections the federal nursing home rule provides for nursing home residents against this abuse and how to respond to the needs of victims. Finally, we will equip you with concrete knowledge on how ombudsmen can advocate for nursing home residents who are victims of this type of abuse, including hearing from a special presenter on the ombudsman role in the Washington Alliance to End Sexual Violence in Long-Term Care.
To register, click here
August 14, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink
Friday, August 10, 2018
Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial
According to news reports, here and here, three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility. The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father. A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.
A North Dakota's statute, N.D.C.C. Section 14-09-10, with language that can be traced back to filial support laws of Elizabethan England, provides:
It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.
One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance: "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid." The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."
According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law. Such laws have been blocked or repealed in most other U.S. states. North Dakota and my own state, Pennsylvania, are the two most notable exceptions.
My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing.
- First, if the father was in the nursing home for 7 months, who did the children think was paying for his care? I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death).
- What was the basis for any denial for Medicaid? I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt? I'm not aware of any such rule at the federal level.
- Is there another member of the family involved in the application -- someone other than the three target children -- or is there another family member involved in any "transfers" causing an alleged ineligibility period? In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
- Finally, why weren't there care planning meetings with the family that included discussions of costs of care? It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.
Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.
August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, August 6, 2018
Professor Reid Weisbord, who serves as vice dean and the Judge Norma L. Shapiro Scholar at Rutgers Law School in Newark, has a new and very timely essay posted on Stanford Law Review Online. The provocative premise should certainly spark responses!
From the abstract:
This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase.
This Essay argues that, if austerity becomes necessary, federal entitlement reforms should be implemented progressively in a manner that minimizes displacement of benefits on which individuals relied when saving for old age. A policy of postmortem austerity would establish new eligibility criteria for Social Security and Medicare that postpone the effective date and economic consequences of benefit ineligibility until after death.
All individuals would continue to collect federal entitlements during life, but at death, wealthy decedents would be deemed retroactively disqualified from part or all of Social Security and Medicare benefits received during life. The estates of such decedents would then be liable for repayment of disqualified benefits.
For the full essay, read Postmortem Austerity and Entitlement Reform, published July 16, 2018.
Monday, July 30, 2018
On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit.
The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers. The trial judge would allow only $1 million in settlement funds to be placed in trust.
In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:
The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . .
Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.
The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back first, before any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A); I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . . Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.
The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."
July 30, 2018 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, June 29, 2018
A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging. She is examining what happens when struggling nursing home operations require intervention to protect existing residents. Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager. Ms. Brambila begins:
The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.
In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.
State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.
The management fee is paid by fines collected from nursing home facilities.
Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.
The average cost for managing these troubled homes exceeded $335,000.
There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers. Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota. According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.
For the full story, read "Pennsylvania to pay $475,000 for temporary nursing home manager." Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.
June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 28, 2018
Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy in 2012.
Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers. Judge Jane Magnus-Stinson observed, in ruling in favor of Ms. Vaughn, that
The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)
Wednesday, June 27, 2018
How Far Can Courts Go in Reassigning Income to a Community Spouse When it Affects Medicaid Payments?
It is a while since I've had a chance to report on an interesting Medicaid planning case. Perhaps that alone is a sign of the times?
Last month in Michigan, however, an appellate court weighed in on an interesting question about the power of courts to reallocate income, from the institutionalized spouse to the community spouse, where such a decision would impact payment sources for the nursing home. In a per curiam decision, the court considered a pair of similar cases, where the state probate courts had entered protective orders that directed "all income" received by an institutionalized spouse (IS) be paid to the community spouse for maintenance purposes. The State Department of Health and Human Services objected, as clearly the state winds up paying more for the IS's care if the community spouse gets all the IS's income.
Does the probate court have authority -- jurisdiction? -- to make such a ruling? What criteria are relevant to the allocation of income? In other words, is the probate court the right place to avoid inadequate safeguards against impoverishment of the community spouse? Interestingly, the Court, at footnote 13, distinguished the two cases from past attempts to make gifts or use protective proceedings for planning purposes before an initial determination of Medicaid eligibility. The court summarized its ultimate decision:
For the reasons explained in this opinion, we conclude that the probate courts have the authority to enter protective orders providing support for a community spouse whose institutionalized spouse is receiving Medicaid benefits. However, we also conclude that the probate courts’ authority to enter such support orders under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq, does not include the power to enter an order preserving the community spouse’s standard of living without consideration of the institutionalized spouse’s needs and patient-pay obligations under Medicaid. Given that the orders in this case were entered without consideration of Joseph’s and Jerome’s needs and patient-pay obligations under Medicaid, we find that the probate courts abused their discretion by entering the orders at issue in this case. We therefore vacate both support orders and remand for a reconsideration of Beverly’s and Ramona’s need for support under the proper framework.
For more, read the full decision in In re Estate of Vansach, Michigan Court of Appeals, May 22, 2018.
Counsel representing the community spouse has posted his own take on the decision, describing it as a win, in a post titled BRMM Wins Significant Elder Law Case in Michigan Court of Appeals.
No success in finding a mirror image article from the DHHS lawyers. With the split decision, I suppose they could have written DHHS Wins Significant Elder Law Case in Michigan Court of Appeals.
Wednesday, June 20, 2018
Eric Carlson, Nancy Stone and Lori Smetanka have joined forces to write an important new guideline for advocacy under the revisions issued by CMS in 2016 for nursing facility care, with an eye towards additional changes likely to occur under the Trump administration.
After surveying the most important reforms, they advise:
The revised regulations contain both positives and negatives for nursing facility residents and their advocates. The positives include expanded requirements for person-centered care, care planning, and resident choice and participation in health care services. The revised regulations also strengthen the NHRA’s prohibitions against facilities requiring a third-party guarantee of payment or a waiver of legal rights, and protections for residents from improper transfer/discharge. In addition, the regulations have added requirements for a facility grievance official and procedures.
It is disappointing, however, that the revised regulations do not require a registered nurse around the clock or a minimum staffing standard. Even though unnecessary restraints are included in the definition of “abuse” and the requirements for drug regimen reviews and reporting of unnecessary drugs were expanded, the revised regulations compromise the focus on ending the misuse of antipsychotic medications.
In addition, the Trump administration has proposed a repeal of the ban on predispute arbitration agreements and delayed enforcement remedies for certain Phase 2 requirements. The administration is also considering the repeal or further modification of other revised regulations (e.g., regulations on grievance procedures, quality assurance, and ombudsman discharge notices).
The authors explain the importance of advocacy in this time of change:
Even though CMS and the states are responsible for implementing these regulations, regulation implementation, if left solely to government agencies and providers, is usually scattershot and inadequate. For the revised regulations to truly become the national standard of care, nursing facility residents and their advocates must be prepared to assert resident rights over and over again. Another unfortunate reality is that nursing facilities may be hostile or apathetic toward the revised regulations and the survey agencies can only do so much, given that federal law requires surveys only once a year. For these reasons, it is up to residents, families, and advocates to be knowledgeable about the federal law and make nursing facilities accountable when they fall short.
For the full picture, read Advocating for Nursing Facility Residents Under the Revised Federal Requirements, published April 2018 in the NAELA Journal, and available online as a PDF.
June 20, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)
Monday, June 11, 2018
My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of GPSolo, the ABA journal for solo, small firm, and general practitioners. Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns. I enjoyed her use of classic lines from the movie Jaws.
My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, June 7, 2018
A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues. The January 2018 issue includes:
- Elder Bankruptcy
- Coordinating Representation: How Business and Elder Law Counsel Can Work Together to Meet Clients' Needs
- The Impact of Aging on Consumer Law
- The Intersection of Estate Planning, Family Law, and Elder Law
- Significant Regulatory Changes for Social Security Disability Insurance and Supplemental Security Income
- Considerations When Settling a Lawsuit for an Individual Lacking Legal Capacity or a Minor
Introducing the theme of the issue, attorney Christine Caswell writes:
While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.
June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 22, 2018
NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits. The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more. NAELA members unable to attend may check the NAELA website for more information.
In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling. Congrats NAELA!
(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)
May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 8, 2018
According to news reports coming out of Louisiana, the state's Department of Health will begin sending "eviction" notices to nursing home residents later this week. This strikes me as a particularly abusive form of gamesmanship connected to state budget negotiations. See what you think!
Louisiana's Department of Health will begin sending nursing home eviction notices Thursday to more than 30,000 residents who could lose Medicaid under the budget passed by the state House of Representatives.
"The Louisiana Department of Health is beginning the process of notifying all impacted enrollees that some people may lose their Medicaid eligibility," Department of Health spokesman Bob Johannessen said. "The goal of the department is to give notice to all affected people as soon as possible in order that they begin developing their appropriate plans."
Gov. John Bel Edwards' staff has planned a press conference Wednesday for more details, a day before the notices are set to be mailed to 37,000 Medicaid recipients in nursing homes or other long-term care facilities.
"(The Department of Health) told us they're sending out the letters May 10," said Mark Berger, executive director of the Louisiana Nursing Home Association, during testimony at the Senate Finance Committee meeting Monday.
The issue was front and center in Senate Finance, which was hearing public testimony on the budget sent to it by the House for most of the eight hours the panel met.
"This sounds like mass chaos," said Sen. Regina Barrow, D-Baton Rouge, who called the letter notification "very troublesome."
For more see the Monroe New Star Report on "Nursing Home Eviction Notices to be Sent Tuesday."
Most commentaries on funding for retirement years point to insufficiency of savings or other resources. But here's a different take, drawing upon a recently published report from the Employee Benefit Research Institute (EBRI) that suggests retirees with significant savings are often exercising restraint in spending, From the St. Louis Post-Dispatch on The Myth of Outliving Your Retirement Savings:
In the EBRI study, those with the most savings — a median of $857,450 shortly after retiring — still had $756,300 two decades later. The decrease amounts to just 11.8 percent of the original sum.
The largest drop in retirement nest eggs, 24.4 percent, was among those with the least savings, or a median of $29,975.
Frugal behavior is consistent with research led by Anna Rappaport for the Society of Actuaries. She and her team found that most people do not plan for retirement or know what they should spend, but they adapt — even when shocked by high dental bills or a roof repair.
What can devastate financially are divorce, caring for a mentally or physically ill adult child who cannot work, and long-term care expenses, according to the actuarial society’s research.
Still, debilitating health care costs are far more rare than people fear, according to the EBRI research. Half of retirees face no nursing home expenses because Medicare covers short recoveries after hospital stays and Medicaid can help when resources run out.
The medical annual out-of-pocket spending for 90 percent of retirees is just $2,000, and the big nursing home costs over $87,000 hit only 10 percent of people living longer than 95, according to the EBRI study.
For the EBRI study itself, see the April 2018 report on Asset Decumulation or Asset Preservation? What Guides Retirement Spending?
Monday, May 7, 2018
A coalition of Wisconsin health care organizations is warning that the state's shortage of long-term care providers continues to grow.
The study, put together by several groups across the state, says 1 in 5 direct caregiver positions in the state is going unfilled. That's up from 1 in 7 positions in 2016.
Starting wages in the profession are so low that many potential workers never apply, according to the report. The median hourly starting wage for personal caregivers is $10.75 an hour, according to the study, while other positions outside health care start at $12 an hour.
The report found Wisconsin's low rate of Medicaid reimbursement is a key factor keeping provider wages low.
Sarah Bass of the Wisconsin Assisted Living Association said with so many unfilled positions, many facilities are cutting back, even though demand for long-term care continues to grow.
"Assisted living providers are closing their doors, or shutting down areas of their assisted living facilities, because they don't have the staff to safely take care of the residents," she said. "They're reducing their admissions."
These problems exist despite some increases in state funding for skilled care and family care workers in the latest budget.
May 7, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, May 3, 2018
Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania. It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing. On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption." Doesn't that title capture the mood of the country?!
Practical workshops include:
- Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
- Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
- Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
- Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
- Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
- Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
- Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
- Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis
Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues). Registration is here.
May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Tuesday, April 10, 2018
I've been struck by the contrast in two recent articles. The always wise Toby Edelman, senior policy attorney at the Center for Medicare Advocacy, was writing about Deregulating Nursing Homes. He begins:
In lockstep with the nursing home industry, the Trump Administration is rapidly dismantling the regulations and guidance that have been developed over the past 30 years to implement and enforce the federal Nursing Home Reform Law. Until the Christmas Eve 2017 report in The New York Times, these devastating changes, often made without any public notice or comment, received no public attention.
Toby reminds us that a "regulatory system is intended to prevent avoidable bad outcomes in the first place." But in his view, both the regulatory system and "the enforcement system .. . [are] under severe attack."
On the other hand, I just read an equally sincere essay authored by a long-term nursing home administer, entitled Why I Chose to Leave the Nursing Home Profession: A Fed-Up Executive's Story. She writes about her frustrations in trying to do the right thing for residents:
Regulations that are so prescriptive that they dictate the exact steps required to comply with the regulation create nothing but an assembly line of care — which is exactly what we are supposed to be fighting against.
I find it baffling that regulations require a facility to operate a “home-like” environment, but then sends surveyors into a facility to pick apart attempts to individualize care. For example, many residents wish to have one side of their twin bed up against a wall to create an increased sense of safety, as well as assist with bed mobility. Upon notification of a surveyor that this was a form of restraint, we had to “undo” the beds that were set up this way to avoid a citation for restraints.
Then that started the tedious process to evaluate the resident, obtain consent, revise the care plan and ensure that documentation from the staff addressed the continued need of the resident.
The paternalistic approach of “we know what is best for you” will only serve to solidify the Institutional care model that seems to be the chosen and preferred method for our societal approach to caring for the frail elderly.
This writer, Julie Boggess, most recently the CEO for Bethesda Rehab and Senior Care in Chicago, admits that "regulations are needed and should serve as the foundation of quality care and service." But, her final words are especially sobering:
But when things like a missing word in a policy or one missed temperature log recording or a date label that fell off a frozen bag of beans is more important than resident and family satisfaction and outcomes of care, there is a serious problem, and it is driving passionate hard-working individuals out of this industry.
The conclusion that propelled me out of this industry is that I, and my staff, were in the quest for quality and culture change alone. The government is nothing but an impediment. I thought the goal was to improve quality care, but if the real goal is to push out good people from the industry, then the government is wildly successful.
Lots to think about here.
April 10, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)
Sunday, February 25, 2018
As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals. The Court tackles head-on the issue of who has the power to take action to address improper discharges.
On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge." Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits.
In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.
The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland. The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state. As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."
There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see State of Maryland v. Neiswanger Management Services LLC..
For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.
See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.
February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, February 23, 2018
The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note. From the opening paragraphs:
Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.
The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.
Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.
This article is definitely worth a careful read.
February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, February 11, 2018
On February 7, 2018, the Seventh Circuit ruled as a matter of law that language in documentation attempting to create a Special Needs Trust was ambiguous. In its decision in National Foundation for Special Needs Integrity, Inc. v. Reese, the Court resolved the ambiguity in favor of the children of the Missouri woman who had established the trust, using proceeds of her personal injury settlement.
The Court, with jurisdiction that appeared to be based on diversity, ordered an Indiana foundation that was named as the trustee of the account to reimburse the estate of the deceased Missouri woman. The amount awarded is more than $243K, plus prejudgment interest. The decision by itself is interesting, especially as it touches on issues such as the intention of the settlor, a defense of laches and the roles of a law office or others in counseling the Missouri woman, who was reportedly unable to read, on how to complete the trust documents. Even more interesting is news indicating that the foundation was created by "a suspended Indiana attorney facing charges that he stole from other clients' trusts." See The Indiana Lawyer's report on Seventh Circuit Reverses, Orders Special Needs Trust Group to Pay Estate.
In the lawsuit, the foundation argued it was entitled to keep the funds designated in the trust, based on a variety of theories including laches; the laches defense failed when the court, in an extended footnote, observed there was no evidence the foundation ever notified the woman's personal representative of outstanding trust amounts, allowing the PR to believe that any proceeds had been used to reimburse the state for Medicaid expenditures. Instead, the court concluded the foundation simply transferred portions of the mother's account into other accounts, which might have been permitted under certain guidelines, if it had been clear the trust was intended to be a "pooled" special needs trust.
For another "great and timely" discussion (I have that description on good authority!) of the Foundation v. Reese case, see Arizona lawyer Robert Fleming's newsletter here. As Robert says, "the background story . . . reinforces the need for transparency and disclosure in pooled special needs trust administration -- and in fact, in all special needs trust management."