Tuesday, March 22, 2016

LTC Insurance: More $ or Less Benefits?

Kaiser Health News ran a story on March 17, 2016 about long term care insurance policies. Long-Term Care Insurance: Less Bang, More Buck explains how one insured saw her premiums cost almost four times as much if she kept her same coverage. Although an important option for many middle-income Americans, it seems, from the article, that the industry has specific challenges facing it.

[I]insurers botched just about every aspect of the policies they sold in the early days of the industry, said Joseph Belth, a retired professor of insurance at Indiana University known as one of the insurance industry’s toughest critics. They underestimated how long people would live and how long they’d need nursing home care — but overestimated how many people would drop their policies and how much interest insurers could earn on the premiums they banked.

Hemorrhaging money, many insurers left the business. Those that remain are in financial trouble on their long-term care policies. They’re charging far more for new policies, and sharply raising the premiums of old ones.

Not as many companies are offering the coverage as once was and many policy holders may be facing a choice of increased premiums, reducing or dropping coverage. As well, the article notes that many folks don't know the limits of Medicare coverage for long term care.  Fewer people are purchasing the policies, but there are now some hybrid options on the market

Fewer people today are buying traditional long-term care insurance policies, which only adds to insurers’ financial woes. Some are considering newer “hybrid” products such as life insurance or annuities that provide a long-term care benefit, but they’re also expensive and some require a large up-front payment.

That’s why pressure is mounting for state and federal lawmakers to come up with ways to finance long-term care for millions of aging baby boomers. Policy proposals abound, such as requiring people to buy subsidized long-term care insurance, much as they now need to buy health insurance. Other ideas include creating a government-run catastrophic plan or allowing people to convert their life insurance policies to long-term care policies. But all of these would require legislative action, and lawmakers at the state and federal level have been slow to act because of the sheer scope of financing Americans’ long-term care.

March 22, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (1)

Sunday, February 28, 2016

Abandoned Nursing Home Residents?

Kaiser Health News (KHN) ran a story titled The Agonizing Limbo Of Abandoned Nursing Home Residents. The story focuses on the refusal of some California nursing homes to readmit residents after a hospital stay.  The story opens with a story of one resident who "had been living[in a nursing home] for four years... [and] the home refused to readmit him, even after being ordered to do so by the state. Nearly nine months later, [the resident] is still in the hospital."  It seems that these residents are trapped in a sort of limbo.

Nursing home residents are entitled to hearings under federal law to determine whether they should be readmitted after hospitalization. The state Department of Health Care Services holds the administrative hearings, but has said it is not responsible for enforcing the rulings.

But the state Department of Public Health, which oversees nursing homes, neglects to enforce the rulings and sometimes disagrees with them, according to advocates and court documents.

That leaves residents .... [even those] who won ... [the]  hearing .... with little recourse — and not many places to go. And since many nursing home residents have publicly-funded insurance, it means taxpayers are on the hook for hospital stays long after the patients are ready for discharge.

California Advocates for Nursing Home Reform (CANHR) in November, 2015 filed suit against California Health & Human Services on behalf of some of these residents with an upcoming hearing in March of 2016. The suit seeks "to require California to establish a hearing process that complies with federal law and to enforce the rulings." The defendant has filed a motion to dismiss.

February 28, 2016 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Tuesday, February 23, 2016

Stakeholders and Policymakers Collaborate on Proposals for Better Approach to Financing Long-Term Care

On February 22, 2016, a diverse collection of individuals, representing a broad array of stakeholders interested in long-term care, released their report and recommendations for major changes.  In the final report of the Long-Term Care Financing Collaborative (LTCFC) they propose:

•Clear private and public roles for long-term care financing

•A new universal catastrophic long-term care insurance program. This would shift today’s welfare-based system to an insurance model.

•Redefining Medicaid LTSS to empower greater autonomy and choice in services and settings.

•Encouraging private long-term care insurance initiatives to lower cost and increase enrollment.

•Increasing retirement savings and improving public education on long-term care costs and needs.

The full report is available here.  

ElderLawGuy Jeff Marshall wrote to supplement this post by providing details of the report, written by Howard Glecknan of the Utban Institute.  Thanks, Jeff!  

Members of the Collaborative included:

Gretchen Alkema, The SCAN Foundation; Robert Blancato, Elder Justice Coalition; Sheila Burke, Harvard Kennedy School; Strategic Advisor, Baker, Donelson, Bearman, Caldwell & Berkowitz; Stuart Butler, The Brookings Institution; Marc Cohen, LifePlans, Inc.; Susan Coronel, America’s Health Insurance Plans (AHIP); John Erickson, Erickson Living; Mike Fogarty, former CEO, Oklahoma Health Care Authority; William Galston, The Brookings Institution; Howard Gleckman, Urban Institute; Lee Goldberg, The Pew Charitable Trusts; Jennie Chin Hansen, immediate past CEO, American Geriatrics Society; Ron Pollack, Families USA; Don Redfoot, Consultant; John Rother, National Coalition on Healthcare; Nelson Sabatini, The Artemis Group; Dennis G. Smith, Dentons US LLP; Ron Soloway, UJA-Federation of New York (retired); Richard Teske (1949-2014), Former U.S. Health and Human Services Official; Benjamin Veghte, National Academy of Social Insurance; Paul Van de Water, Center on Budget & Policy Priorities (CBPP); Audrey Weiner, Jewish Home Lifecare, immediate past Chair, LeadingAge; Jonathan Westin, The Jewish Federations of North America (JFNA); Gail Wilensky, Project HOPE;Caryn Hederman, Project Director, Convergence Center for Policy Resolution; Allen Schmitz, Technical Advisor to the Collaborative, Milliman, Inc.

February 23, 2016 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Retirement, Science, Statistics | Permalink | Comments (1)

Only Limited Authority as Health Care Agents? The Latest Grounds to Challenge Dreaded Arbitration Clauses in NH Cases

The New York Times offers another window into concerns about pre-dispute binding arbitration provisions that are routinely found in nursing home agreements.  This is a long-simmering war, with many battlefronts and tactical arguments, as documented in the article.  However, the article also focuses on a narrow group of cases where courts have rejected a binding effect for arbitration clauses signed by someone serving "merely" as a health care agent for the incapacitated resident. (I hope my Contracts course students this semester are reading this article!)  

The article offers an additional opportunity to consider the tensions between public policies on either side of the debate over "fairness" of arbitration as a forum for consumer claims:

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans.. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

 

State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.

 

Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.

 

Mr. Barrow’s case [set for trial in Massachusetts] is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back. As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf.

 

Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration.

For more, read Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?

Our thanks to attorneys Karen Miller in Florida and Morris Klein in Maryland, plus Dickinson Law students Joe Carroll, Corey Kysor and Kadeem Morris in Pennsylvania for sending us the link to the NYT coverage.

February 23, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Thursday, January 28, 2016

Home Care & The Fair Labor Standards Act

Earlier this month, CMS published a CMCS information bulletin with the subject, Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes .  This is a re-release of the informational bulletin originally published in early July of 2014. Why? Because this informational bulletin is intended 

to assist states in understanding how they may ament their current 1915(c) waivers and state plan (1905(a), 1915(i), 1915(j), and 1915(k)) personal care services to implement Fair Labor Standards Act (FLSA) changes in a timely way, and in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time during the workday that are likely compensable as the result of the DOL home care final rule.

CMS stands ready to help by providing "technical assistance to states seeking to adjust Medicaid reimbursement and other program policies to appropriately support FLSA compliance in home and community based LTSS. Additionally, DOL is continuing to provide extensive, individualized technical assistance." The focus of the bulletin is on home-care services that are use "self-directed service options" but  the bulletin also notes "that FLSA implications also exist for services furnished through agency-delivered models."

 

January 28, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, January 20, 2016

Teaching an Elder Law Seminar This Semester?

Are you teaching an elder law this semester?  If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."  

The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan.  They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!

January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 4, 2016

Long Term Care Insurance-the Choices Are Complex

The New York Times on December 18, 2015 ran an article about LTC insurance. Long-Term Care Insurance Can Baffle, With Complex Policies and Costs opens with this compelling statement: "[insuring] for long-term care is a lot like trying to cover the future financial impact of climate change. It’s a universal problem that looms large, is hard to predict and will be costly to mitigate."  The article provides a critical look at the need for long term care insurance and the hurdles that are faced by those considering the need for long term care.

[I]t is a notoriously confusing and not always reliable product. That’s why few people turn to such insurance. Some 70 percent of those over age 65 will require some form of long-term care before they die, but only about 20 percent own a policy.

Instead, millions of those who end up needing long-term care pay for it out of pocket or, after impoverishing themselves, turn to the government for support.

The article takes a look at the costs of the policies, when coverage kicks in, and the limitations of such insurance.  The article offers some suggestions for those considering such a policy and concludes with  some food for thought:

As if these questions weren’t difficult enough, there are also estate planning considerations. You may want to leave something to your heirs and not want to see your estate consumed by long-term care expenses in your final years.

Several newer products called hybrids add on long-term care benefits to life insurance and annuities that may address this concern. But they add even more layers of cost and complexity.

For those in such situations, experts advise consulting an elder law attorney and fee-only financial planner who doesn’t make money from recommending the policies. That’s the best way to receive an objective — and nuanced — evaluation on whether this product makes sense for you.

January 4, 2016 in Consumer Information, Current Affairs, Estates and Trusts, Health Care/Long Term Care, Medicaid | Permalink | Comments (1)

Thursday, December 17, 2015

Pennsylvania Issues Post-Zahner Operations Memo on "Evaluating Non-Qualified Annuities"

Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period.   The Ops Memo #15-11--01, issued November 16, 2015, provides in part:

Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy.  If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services. 

 

Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed.  Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.

It will be interesting to see "what happens next" in the world of Medicaid planning.  My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.

December 17, 2015 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, December 7, 2015

The Costs of Dementia-Part Three

Money Magazine's final article in the series on the costs of dementia focuses on the costs in the final stages of the disease. Coping With the Costs of Dementia: The Final Stage discusses the costs and the options for caring for an individual in the final stage of this disease.

In the final stages of dementia, which typically last four to five years, the need for care intensifies. [One's] spouse eventually will require around-the-clock assistance with most activities of daily living. [One's] toughest decision: whether to try to continue caregiving at home or move [one's] loved one to an assisted-living facility or a nursing home. [One] may feel guilty at the prospect of putting someone [one] love[s] in “a home”—that’s common and understandable—but a setting where professionals are providing the intense level of care needed at this point is often the best path, especially if they’re trained in the needs of dementia patients. That said, it’s also the most expensive care option by far.

The article urges caregivers to take proactive action, suggests caregivers pick a nursing home with a memory care unit, get advice on the order in which to spend assets and start planning for the caregiver's own future.  "Caring for someone with dementia is emotionally exhausting and financially draining, but it comes with one particular satisfaction: knowing that you’ve done whatever you can to make the last years easier for someone you love."

December 7, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (1)

Sunday, December 6, 2015

The Costs of Dementia-Part Two

Money Magazine's second article on the costs of dementia focuses on the middle stage of dementia. Coping With the Costs of Dementia: The Middle Stage discusses a series of steps for the caregivers and family to take, not only for the present, but in positioning themselves for the final stage of the disease.  The article discusses a number of suggestions:

  • greater levels of care, including adult day care and respite care and recommends only hiring caregivers with experience in caring for individuals with dementia;
  • examine the terms of any long term care insurance policy, if the individual has one;
  • if the individual is a veteran, look into VA benefits;
  • examine the individual's and family member's investment portfolio; rearranging allocations to more conservative investments may be needed;
  • investigate a reverse mortgage;
  • caregivers should talk to employers about options; and
  • begin to research nursing homes.

December 6, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)

Thursday, December 3, 2015

The Costs of Dementia

Money Magazine ran a series on the costs of dealing with dementia.  Separating dementia into three stages, early, middle, and late, the series breaks down the costs for each of the stages.

Coping With the Costs of Dementia: The Early Stage looks at both the personal costs as well as the financial costs of copying with the disease in the beginning.

The financial toll can be nearly as large as the personal loss. Over the last five years of life, the average out-of-pocket cost of care for dementia patients totaled $61,500—81% more than for people without dementia—according to a new study in the Annals of Internal Medicine. Nearly half of the dementia patients ended up on Medicaid, the government health care program for impoverished Americans, compared to about 20% of patients suffering from heart disease or cancer.

If you were asked what is the reason for the costs of dementia early on, would you say drugs or treatments? According to the article, if you did, you'd be wrong.  "Driving the cost aren’t drugs or treatments, but the years of care necessary to get a person safely through life’s everyday activities. Medicare, the primary health insurance for people 65 and older, doesn’t cover that long-term nonmedical care." 

The article discusses the differences between "normal" aging and early signs of Alzheimer's.  As far as costs in the early stage of the disease, "which lasts an average of two years, [one's] out-of-pocket costs won’t be burdensome. But [one will] need to plan for more expensive care later on, and move quickly, since [one's] husband, wife, or parent has a limited window to participate in financial decisions and sign any necessary legal documents before cognitive abilities fade."

The article recommends a number of steps to take to prepare, including obtaining the needed documents, appointing agents, talking to a doctor, organizing finances and preparing for Medicaid.  Check out the graphic of expenses in the last 5 years of life.

December 3, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Monday, November 30, 2015

Medicaid-It's Complicated and Important

Huffington Post's Post50's blog on November 29 featured the post, 5 Common Misconceptions About Medicaid.  The author, Anne Tumlinson,opens the post

I have a confession. I've been avoiding writing about Medicaid. It's so complicated it scares me. But, Medicaid can be really important to daughterhood because someday you might have to decide if it's right for your parent. So you have to get smart about it.

She explains the importance of the Medicaid program as a "safety net for when everything falls apart" and after a brief description, moves into a discussion of the 5 misconceptions:

  1. "Medicaid is a lot like Medicare...
  2. Medicaid is available to everyone...
  3. Medicaid Will Take Your Parents' Home...
  4. Medicaid is a national program that's the same for everyone...
  5. Medicaid only covers nursing homes...."

With each she offers explanations as to what Medicaid really covers and concludes her post noting

When is Medicaid right for your parent? It depends on so many individual and family circumstances. And, it depends on your state. There are no hard and fast rules. But, if you've been walking down this caregiving road for a long time and you are looking at nursing home care, Medicaid may be necessary to pay for the care. OR, if your parent's money is running out because of expensive care --- even if he or she isn't in a nursing home --- then it could be helpful, especially if there's a good community program in your parent's local area... [a]nd, figuring this program out for your family is not easy. Just remember that it's a crazy complicated hard situation. Not that you are failing.

Note, you can also access her post on her blog here.

 

November 30, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, November 23, 2015

Mass. Appellate Court Reinstates Legal Malpractice Verdict Following Flawed Medicaid-Planning Advice

In October 2015, the Massachusetts Court of Appeals addressed the question of whether there were damages flowing from a lawyer's Medicaid advice to an older couple. The lawyer had counseled that, for Medicaid planning reasons, the couple should not retain a life estate in a house purchased with their money but held in the name of their adult children. The court found the surviving mother suffered real damages, even if eviction from the house by her children was unlikely.  Key allegations included:

Thirteen years later, in July of 2007, the Brissettes [the parents] and two of their four children, Paul Brissette and Cynthia Parenteau, met at [Attorney] Ryan's office to discuss the Brissettes' desires to sell the South Hadley home and to buy property located in Springfield. They discussed the prospect of putting the Springfield property in the names of Paul and Cynthia. Ryan told the Brissettes that if they reserved life estates in the Springfield property, they could be ineligible for Medicaid if they applied any time within five years of getting the life estates. He also told them that if they took life estates in the Springfield property, there could be a Medicaid lien against that property when they died. There was evidence that the Brissettes asked about “protection,” but Ryan told them that he did not feel that the Brissettes needed protection because they could trust their children to do what they wanted them to do. In reliance on Ryan's advice, the Brissettes decided that the Springfield property would be bought with their money  but put in Paul's and Cynthia's names, and that the Brissettes would not have life estates in the Springfield house.

After her husband's death. Mrs. Brissette concluded she wished to own "her" home in her own name, but the children declined to re-convey the property to her. 

During the malpractice trial, Lawyer Ryan conceded his advice about the effect of a life estate on Medicaid and/or a Medicaid lien was wrong, and expert witnesses also testified that the incorrect Medicaid advice was "below the standard of care applicable to the average qualified attorney advising clients for Medicaid planning."

Continue reading

November 23, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, November 18, 2015

Health Affairs Publishes Report on New Models for Long-Term Services and Supports

Coinciding with the presentation yesterday at the National Press Club in Washington, D.C., the journal Health Affairs released a report  by Melissa Favreault, Howard Gleckman, and Richard W. Johnson, titled "Financing Long-Term Services And Supports: Options Reflect Trade-Offs For Older Americans And Federal Spending."  Noting the history of weak buy-in for existing long-term care insurance products, the authors' study, funded by the SCAN Foundation, AARP and LeadingAge, looks to future alternatives.  From the abstract:

To show how policy changes could expand insurance’s role in financing these needs, we modeled several new insurance options. Specifically, we looked at a front-end-only benefit that provides coverage relatively early in the period of disability but caps benefits, a back-end benefit with no lifetime limit, and a combined comprehensive benefit. We modeled mandatory and voluntary versions of each option, and subsidized and unsubsidized versions of each voluntary option. We identified important differences among the alternatives, highlighting relevant trade-offs that policy makers can consider in evaluating proposals. If the primary goal is to significantly increase insurance coverage, the mandatory options would be more successful than the voluntary versions. If the major aim is to reduce Medicaid costs, the comprehensive and back-end mandatory options would be most beneficial.

The full article is linked here. Several related pieces are also on the Health Affairs website.  Much to read and evaluate here and helpful for those planning spring Elder Law courses. 

November 18, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1)

Tuesday, November 10, 2015

New York Court Addresses "Medicaid Transfer" Issue in Context of Continuing Care Community (CCRC)

On November 6, 2015 the appellate division of New York's Supreme Court addressed an issue long brewing in some states, whether Continuing Care Retirement Communities (CCRCs) can insist on "private pay" for skilled nursing care despite a resident's "eligibility" for Medicaid under state and federal laws.  In Good Shepherd Village at Endwell, Inc. v. Yezzi, the unanimous panel affirmed summary judgment in favor of the CCRC on the payment question.

The decision highlights Congressional DRA action in 2005/6 that amended federal Medicaid law to expressly permit CCRCs to offer contracts that require residents to "spend on their care resources declared for the purposes of admission before applying for medical assistance."  The DRA amendment was a response to the industry's lobbying efforts, following a 2004 decision by a Maryland appellate court in Oak Crest Village, Inc. v. Murphy that held such a contractual provision violated the federal Nursing Home Residents' Bill of Rights, viewed as prohibiting nursing homes from conditioning admission on guarantees of private pay.

In the New York case history, the couple apparently signed two separate documents, beginning with a "contract" at the time of their entrance into the CCRC that required them to pay both an entrance fee ($143,850) and "basic monthly fees" of approximately  $2,550 to cover the cost of independent living.  Any need for skilled nursing care would be assessed "an additional charge."  That contract provided that residents could "not transfer assets represented as available" for less than fair market value.  When the wife needed skilled care, the couple signed a second document, referred to in the case as an "admission agreement," for treatment in the CCRC's skilled nursing unit. The "admission agreement" reportedly required the Yezzis to "pay for, or arrange to have paid for by Medicaid" all services provided by the CCRC.

Continue reading

November 10, 2015 in Consumer Information, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Friday, October 9, 2015

Filial Friday: Freakonomics Asks "Should Kids Pay Back Parents for Raising Them?"

In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.  

This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is.  We were talking about his research-based observation in the book about adult children and needy parents:

Adult children were not legally bound to remain and to work for their parents.  Nor were they obligated to care for the old.  Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.

I asked, "what about filial support laws?"  Turns out that was a timely question because Professor Hartog  had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015.  In the interview Professor Hartog was asked to comment on filial support laws.  He said in part:

Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced.  Very, very, very, very rarely.  So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers. 

Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s.  And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits.  But...

I think the modern story is quite different in at least one state -- Pennsylvania.  Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era.  Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.

Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany. 

Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.

This seems a more realistic paradigm, although  not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.

October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 5, 2015

Webinar on October 6: The "A to Zahner" on Medicaid Annuities

Sorry for the short notice, but on Tuesday, October 6, 2015 from noon to 1 p.m. (Eastern time), the Pennsylvania Bar Institute is hosting a very timely (and cleverly titled) webinar, focusing on the impact of the Third Circuit's recent decision in Zahner on Medicaid planning generally and specifically on the sue of annuities. 

Here is a link to PBI's details on "The A to Zahner on Medicaid Annuities," including how to register.

October 5, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicaid, Property Management, Webinars | Permalink

Sunday, September 27, 2015

Keeping Track of Preventive Services

Trying to keep straight all of the preventive services available to individuals is daunting, but the Kaiser Family Foundation (KFF) has made it easy with their new tool, Preventive Services Tracker.   There are separate trackers for each condition including cancer chronic conditions, immunizations, sexual health, health promotions and preganancy-based.  Organized into easy-to-use charts,, each chart provides information on the required service, the target population, the recommendation, coverage clarifications and effective dates.  The charts also provide links for each required service to explain more details.

You might also want to check out their article on Preventive Services Covered by Private Health Plans Under the Affordable Care Act and the accompanying fact sheet.

 

September 27, 2015 in Cognitive Impairment, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Thursday, September 24, 2015

Family Caregivers Show Support for Pennsylvania State Assistance at State Capitol

If you have worked in Elder Law long enough, you have probably received a panicked call from a family caregiver who is unprepared for a loved one to be discharged on short notice from hospital care.

2015-capitol-caregiving-event-tamesha-keelOn September 22, the Pennsylvania Capitol in Harrisburg was crowded with individuals wearing coordinated colors, showing their support for Pennsylvania Caregivers, including family members who are often struggling with financial and practical challenges in caring for frail elders. Here's a link to a CBS-21-TV news report, with eloquent remarks from Tamesha Keel (also pictured left), who has first-hand experience as a stay-at-home caregiver for her own aging mother.  Tamesha recently joined our law school as Director of Career Services.

AARP helped to rally support for House Bill 1329, the Pennsylvania CARE Act.  The acronym, coined as part of a national campaign by AARP to assist family caregivers, stands for Caregiver Advise, Record and Enable Act.  HB 1329  passed the Pennsylvania House in July 2015 and is now pending in the Pennsylvania Senate.

We have written on this Blog before about pending CARE legislation in other states.  A central AARP-supported goal is to achieve better coordination of aftercare, starting with identification of patient-chosen caregivers who should receive notice in advance of any discharge of the patient from the hospital.  Pennsylvania's version of the CARE Act would require hospitals to give both notice and training, either in person or by video, to such caregivers about how to provide appropriate post-discharge care in the home. 

I'd actually like to see a bit more in Pennsylvania. It is unfortunate that the Pennsylvania CARE Act, at least in its current iteration (Printer's Number 1883), does not go further by requiring written notice, delivered at least a minimum number of hours in advance of the actual discharge. AARP's own model act suggests a minimum of 4 hours, consistent with Medicare rules.

Under Federal Law, Medicare-participating hospitals must deliver advance written notice of a discharge plan, and such notice must explain the patient's rights to appeal an inadequate plan or premature discharge. A timely appeal puts a temporary hold on the discharge. See the Center for Medicare Advocacy's (CMA) summary of key provisions of Medicare law on hospital discharges, applicable even if a patient at the Medicare-certified hospital isn't a Medicare-patient. CMA's outline also suggests some weaknesses of the Medicare notice requirement.

AARP's original CARE Act proposals are important and evidence-based, seeking to improve the patient's prospects for post-hospitalization care through better advance planning. At the same time, there's some irony for me in reading the Pennsylvania legislature's required "fiscal impact" report on HR 1329, as it reports a "0" dollar impact.  That may be true from the Pennsylvania government's cost perspective, but for the hospitals, to do it right, whether in person or by video, training is unlikely to be revenue neutral.  I think we need to talk openly about the costs of providing effective education or training to home caregivers.

If passed by the Senate, Pennsylvania's CARE Act would be not become effective for another 12 months.  The bill further provides for evaluation of the effectiveness of the rules on patient outcomes.   

As is so often true, states are constantly juggling the need for reforms to solve identified problems, with the costs of such reforms.  Perhaps the current version of the Pennsylvania bill reflects some compromises among stakeholders. According to this press statement, the Hospital and Health System Association of Pennsylvania supports the current version of AARP's Pennsylvania CARE Act.

September 24, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)

Friday, September 18, 2015

Medicare Criminal Investigation? FBI Raids Home of CEO of Nursing Home Company

As we have frequently reported on this Blog (see e.g., here and here and here), the Obama Administration has been aggressive in pursuit of Medicare and Medicaid claims tied to unlawful reimbursement or kickback claims for companies involved in long-term care.  But even given that history, often tied to whistleblowing by current or former employees, it is unusual to see criminal investigations. Thus recent media reports about the FBI raiding the CEO of American Senior Communities was eye-catching, including this report from the Indianapolis Star:  

A cadre of federal agents raided the Carmel home of an executive of a chain of nursing homes Tuesday morning. But the most important question remains unanswered: Why?

The home is owned by James G. Burkhart, the CEO of American Senior Communities, according to Hamilton County property records. FBI investigators also were at the Southside headquarters of American Senior Communities, at 6900 Gray Road, according to reports.

American Senior Communities manages nearly 100 senior care facilities and is one of the largest nursing home management companies in Indiana. Among those are 60 sites, including skilled nursing facilities and assisted living facilities throughout the state, that the company manages under a contract with Marion County’s public health agency.

According to media reports, American Senior Communities (ASC) issued the following press statement following the raid:

"American Senior Communities’ most important priority is to continue to provide excellent care to our patients and residents. ASC has been contacted by the federal government in connection with an investigation into certain individuals or practices. ASC is fully cooperating with the government and is conducting its own review to ascertain the relevant facts. ASC is in compliance with all federal, state and local laws and regulations and will continue to conduct its business in accordance with the highest standards of integrity." 

Stay tuned...(but don't hold your breath).

September 18, 2015 in Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)