Wednesday, June 20, 2018

New Rules Governing Nursing Facility Care Trigger New Approaches to Advocacy

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

Aging: "The One Shark We Cannot Escape"

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.
 
The full article is currently behind a paywall on the ABA website. For more of Linda's wise words, it is worth tracking down a copy of An Elder Care Lawyer's Story.  It is in Volume Issue No. 2 (March/April, 2018) of GPSolo.  It is also available on Westlaw, although, of course, that's another paywall.   

 

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

Michigan Bar Journal Issue Explores the Intersection of Elder Law and Disability Law

A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues.  The January 2018 issue includes:  

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

Congrats to NAELA

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

The Chicken Little Game with State Payments to Nursing Homes?

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."

May 8, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Do You Have Enough Retirement Savings? -- Here's An Encouraging Report

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? 

May 8, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, Retirement, Statistics | Permalink | Comments (0)

Monday, May 7, 2018

Wisconsin Study Reports 20% of Long-Term Care Jobs Are Unfilled

From Wisconsin Public Radio on the Long-Term Care Workforce Crisis Report of 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

21st Annual Elder Law Institute in Pennsylvania, July 19-20, 2018, Open for Registration

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

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

Testimony before PA House Hearing on Access to Justice 4.11.18TThe 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. PA House of Representatives Hearing on Access to Justice for Older Adults 4.11.18
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

Whither Goest Deregulation of Nursing Homes?

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

Md Court of Appeals Permits AG's "Improper Discharge" Suits Against Nursing Homes

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

NYT: Focus is on Nursing Home Evictions and the Reality of Underfunding of Long-Term Care

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

Seventh Circuit Interprets "Ambiguous" Special Needs Trust, Amid Background of Fraud Claims

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."

February 11, 2018 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 15, 2018

Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case

Regular readers of this Blog will remember that we have been following the case of Melmark Inc. v. Schutt, wherein a residential facility for disabled children and adults in Pennsylvania, has sought to hold 70+ year-old New Jersey parents liable for approximately 13 months of care the facility provided for their autistic adult son after New Jersey stopped public payments for his support.  The parents were successful at the trial and intermediate courts of appeal in Pennsylvania, arguing that New Jersey, not Pennsylvania law controlled the issue of any filial obligation.  Pennsylvania statutory law imposes liability on certain family members, without regard to age, to cover costs of care provided to "indigent" children or parents, while New Jersey's filial support statute limits obligations for older adults, for "any person 55 years or over," to support for minor children or spouses.  See N.J.S.A. Section 44:1-140(c) (Relatives Chargeable).   The unpaid costs in question totaled more than $200,000, before the Melmark took it upon itself to take the son back to New Jersey, dropping him off at a local hospital.

On December 26, 2017, the Pennsylvania Supreme Court granted the facility's request for further appeal on the following issues:

1. Whether the Superior Court erred as a matter of law in finding that New Jersey’s filial support statute, rather than Pennsylvania’s, applied
in this matter where there is no conflict between the New Jersey statute and Pennsylvania’s statute under the facts of this case?


2. Whether the Superior Court erred in finding that New Jersey has a greater interest in the application of its filial support statute where, inter alia, all of the relevant contacts, with the exception of the residency of Respondents Clarence and Barbara Schutt, are with Pennsylvania; where the Schutts took affirmative actions to keep their highly disabled son in a Pennsylvania nonprofit residential and therapeutic institution, Petitioner Melmark, Inc., with the avowed aim of Melmark funding his care for his “entire life,” including manipulating the Pennsylvania and New Jersey legal systems to prevent his return to New Jersey; and where the Superior Court’s decision results in Melmark being entirely uncompensated for providing an extended period of vital, intensive care for the Schutts’ son?


3. Whether the Superior Court erred in finding that the lower court properly denied relief on Melmark's claims for quantum meruit and unjust enrichment? 

I've been teaching Conflicts of Law for many years and I actually used a variation on this problem for the final exam in my Fall 2017 course.  As was true in the lower courts in the Melmark case, most of my students came to the conclusion that under the forum's choice of law rules, the state with the most substantial relationship to the issue of parental liability for statutory support was the state where the parents and son were residents, here New Jersey.  

My best guess is that the Pennsylvania Supreme Court may go more deeply into  the common law claims for "quantum meruit and unjust enrichment" (which in Pennsylvania are usually treated as alternative names for the same causes of action, sometimes termed "quasi-contract" claims). 

As I've been saying for months now, this is a tough case for everyone.  

January 15, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 11, 2018

ER Visit Signals Underlying Issues?

Kaiser Health News ran a story about how an ER visit may signal underlying, and maybe undiscovered, issues for elders. For Elder Health, Trips To The ER Are Often A Tipping Point explains that "[a]n older person’s trip to the ER often signals a serious health challenge and should serve as a wake-up call for caregivers and relatives."  Based on a study last year, the article reports that statistics bear this out: "[s]ix months after visiting the ER, seniors were 14 percent more likely to have acquired a disability — an inability to independently bathe, dress, climb down a flight of stairs, shop, manage finances or carry a package, for instance — than older adults of the same age, with a similar illness, who didn’t end up in the ER."  This doesn't mean those who visited the ER were always admitted, and in fact, in many instances the converse was true.

The takeaway: Illnesses or injuries that lead to ER visits can initiate “a fairly vulnerable period of time for older persons” and “we should consider new initiatives to address patients’ care needs and challenges after such visits,” said one of the study’s co-authors, Dr. Thomas Gill, a professor of medicine (geriatrics), epidemiology and investigative medicine at Yale University.

The article notes that those needing help with ADLs or IADLs for example, are particularly at risk of having problems after an ER visit.

January 11, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Wednesday, January 3, 2018

Monetary Penalties vs. SNFs lessened

According to a recent story in Kaiser Health News, Trump Administration Relaxes Financial Penalties Against Nursing Homes, "[t]he ... administration — reversing guidelines put in place under President Barack Obama — is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury." According to the article, the change was requested by the industry. Is the change needed? Judge for yourself:

Since 2013, nearly 6,500 nursing homes — 4 of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

Both sides have weighed in on the appropriateness of the loosening of penalties, with opponents expressing concern about reducing deterrence. The changes have been gradually occurring over the fall. "In November, the ... administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems."  The New York Times also ran a story about the changes, which is available here.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink

Monetary Penalties vs. SNFs lessened

According to a recent story in Kaiser Health News, Trump Administration Relaxes Financial Penalties Against Nursing Homes, "[t]he ... administration — reversing guidelines put in place under President Barack Obama — is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury." According to the article, the change was requested by the industry. Is the change needed? Judge for yourself:

Since 2013, nearly 6,500 nursing homes — 4 of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

Both sides have weighed in on the appropriateness of the loosening of penalties, with opponents expressing concern about reducing deterrence. The changes have been gradually occurring over the fall. "In November, the ... administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems."  The New York Times also ran a story about the changes, which is available here.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink

Emergency Preparedness Legislation

The National Consumer Voice for Quality Long-Term Care sent an email that emergency preparedness legislation was introduced at the end of 2017.  According to the email the bill was introduced by Florida Congresswoman Wasserman Schultz and Michigan Congressman Walberg. The bill, H.R. 4704, available here, is intended to incorporate the "emergency preparedness final rule for skilled nursing facilities and nursing facilities as conditions of participation under the Medicare and Medicaid programs, and for other purposes" into the U.S. Code. The bill would amend the Medicare and Medicaid statutes to require SNFs  and NFs by requiring alternative energy sources (for example, generators and adequate fuel to power them) for 96 hours post-disaster. Sanctions for non-compliance are monetary penalties, including increased penalties if a resident dies as a result of the facility's non-compliance. The bill includes a loan provision and a prioritization plan.

In addition to this federal legislation, Florida is also going to take up the issue of making backup generators mandatory in its 2018legislation session.

Stay tuned.

 

The bill, H.R. 4704, the Nursing Home Comfortable Air Ready for Emergencies (CARE) Act, would:

  • Codify the federal Emergency Preparedness rule that went into effect November 15, 2017 for nursing homes.
  • Mandate that facilities have in place an alternate source of energy capable of powering heating, ventilation, and air conditioning (HVAC) systems following a natural disaster for at least 96 hours.
  • Increase civil money penalties for facilities found out of compliance with CMS Requirements of Participation, including authorizing civil monetary penalties up to $100,000 for non-compliance resulting in a resident’s death.
  • Direct the Secretary of HHS to review facilities based on the Emergency Preparedness (EP) rule and publish the findings on the Nursing Home Compare website.
  • Create a loan fund for smaller facilities, or those serving more low-income residents, to come into compliance. Facilities must have a monthly rate of less than $6,000 for private rooms, or have fewer than 50 beds, to qualify.
  • Require states to prioritize nursing homes in the same manner as hospitals are prioritized in All-Hazards Public Health Emergency Preparedness and Response Plans, and to include in those plans information on how utilities plan to ensure that nursing homes return to functioning as soon as practicable following a disaster.

January 3, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink

Friday, December 15, 2017

Getting to Know More about the National Center for Law and Elder Rights

Are you familiar with the National Center on Law and Elder Rights? If you are an academic teaching courses about any aspect of elder law, disability law, Medicare or Medicaid, you will want to know more about this resource.  If you are working in a legal services organization that represents older clients or disabled adult clients, you will want to now about this resource.  If you are a young lawyer and just handling your first case involving home-based or facility-based care for older persons who are can't afford private pay options,  you will definitely want to know about this resource.  In fact, if you are a long-time lawyer representing families who are struggling to find their way through an "elder care" scenario,  you too might benefit from an educational "tune up" on available benefits.  And the very good news?  This is a free resource. 

The National Center on Law and Elder Rights (NCLER) was established in 2016 by the federal Administration for Community Living. The new entity is, in essence, a partnership project, with the goal of providing a "one-stop resource for law and aging network professionals" who serve older adults who need economic and social care assistance. Justice in Aging (formerly the National Senior Citizens Law Center) which has primary offices on the east and west coast is a key partner, working with the American Bar Association's Commission on Law and Aging, the National Consumer Law Center (NCLC), and the Center for Social Gerontology (TCSG). Attorneys at these four NCLER partners provide substantive expertise, including preparation of materials available in a variety of formats, such as free webinars on a host of hot topics.  The Directing Attorney is Jennifer Goldberg from Justice in Aging and the Project Manager is attorney Fay Gordon.  

It strikes me that a very unique way in which NCLER will be a valuable resource is through what the offer as "case consultations" for attorneys and other professionals.  Think about that -- you may have long-experience with one branch of "elder law" such as Medicaid applications,  but you have never before handled an elder abuse case with a bankruptcy problem. Here is the way to potentially get experienced guidance! 

The web platform for NCLER offers a deep menu of resources, including recordings of very recent webinars and information on future events. I recently signed up for a January 2018 webinar program on elder financial exploitation and even though it is a "basics" session I can tell I'll hear about a new tools and possible remedies, as the presenters are Charlie Sabatino and David Godfrey.  I just watched a recording of another recent webinar and it was very clear and packed with useful information.  There is a regular schedule for training sessions -- with "basics" on the second Tuesday of every month and more advanced training sessions on the third Wednesday every month. 

I confess that somehow NCLER wasn't on my radar screen until recently (probably because my sabbatical last year put me about a year behind on emails -- seriously!) but I'm excited to know about it now.  

December 15, 2017 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Social Security, Web/Tech, Webinars | Permalink | Comments (0)

Wednesday, December 6, 2017

More on Nursing Home Issues

There have been a spate of articles of late regarding various issues surrounding nursing homes, and to some extent ALFs, arising from the hurricanes that hit Florida, Puerto Rico and Texas this past summer.  For example, Health News Florida reported that ALFs in Florida were facing a whopping $280 million for generators, Assisted Living Facilities Face $280 Million Tab For Generators     resulted from a cost estimate from Florida's Department of Elder Affairs, which "published a summary of the estimated regulatory costs on Wednesday after it received a three-page letter from the Joint Administrative Procedures Committee flagging potential problems with the proposed rule, initially published on Nov. 14. The estimated costs were published in the Florida Administrative Register."  The Florida Governor had issued an emergency rule shortly after Irma and the agency has now released a permanent rule to replace the emergency rule.  It looks as though there are over 4,500 ALFs in Florida, so it's understandable how the cost of compliance would reach that estimate. 

Meanwhile, Health News Florida was also reporting that the cost of generators for nursing homes is less than that estimate for ALFs but still high-$186 million high. Nursing Home Generator Costs Estimated At $186 Million     explains this figure, again an estimate, again resulted from the new rule with the total based on "estimates on information provided from the nursing home industry, which said the costs for a generator at a 120-bed facility would be $315,200. Using those figures, [the Florida Agency] estimated the average cost per bed at $2,626.66."

Then there's the story about the plan to recycle Rx meds from Pro Publica that Health News Florida picked up, More States Hatch Plans to Recycle Drugs Being Wasted in Nursing Homes     explains "how the nursing home industry dispenses medication a month at a time, but then is forced to destroy it after patients pass away, stop using it or move out. Some send the drugs to massive regional incinerators or flush them down the toilet, creating environmental concerns." Although there are a few programs to "recycle", most of the time leftover drugs are destroyed, some by flushing and others by incinerating.  Although in many states, donations of drugs is possible, the story explains "[m]any states ... don’t have programs that get the drugs safely from nursing homes to those who need them."

December 6, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (1)