Monday, March 31, 2014
On several occasions we have posted about Jimmo v. Sebelius (in the interest of full disclosure, I'm on the board for the Center for Medicare Advocacy (CMA)). I was interested in reading Susan Jaffe's March 25, 2014 post in the New Old Age Blog, A Quiet ‘Sea Change’ in Medicare. Describing the impact of the settlement, Ms. Jaffe points out that notice was required to be given to "health care providers, bill processors, auditors, Medicare Advantage plans, the 800-MEDICARE information line and appeals judges — but not beneficiaries." The post talks about the impact on individuals receiving care in the community, requirements for certain services.
The article provides information about how beneficiaries can request reimbursements, and offers beneficiaries some suggestions on what to do if denied coverage. As a last step the article suggests that beneficiaries contact CMA's lawyers since "[t]hey are meeting regularly with Medicare officials to monitor compliance with the settlement and will tell the agency about coverage denials prohibited in the settlement. Despite Medicare’s efforts to get the word out, the center still receives complaints every week from people denied treatment only because they are not getting better."
A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents. Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash. I later learned that one person expected an additional "fee" for "managing" the arrangement. The family felt trapped, although the crisis was cut short when the parent died.
More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years. Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable. But how to apply for Medicaid? Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars. With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid? Would an affidavit or testimony by a family member be enough to satisfy the agency?
A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term. In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books. One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.
During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.
For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person.
Sunday, March 30, 2014
You don't find many designers working in the funeral business thinking about more creative ways for you to leave this world (and maybe they should be). However, the product designer Gerard Moline has combined the romantic notion of life after death with an eco solution to the dirty business of the actual, you know, transition.
His Bios Urn is a biodegradable urn made from coconut shell, compacted peat and cellulose and inside it contains the seed of a tree. Once your remains have been placed into the urn, it can be planted and then the seed germinates and begins to grow. You even have the choice to pick the type of plant you would like to become, depending on what kind of planting space you prefer.
Last fall, our Elder Law Prof Blog reported on the available of a MOOC (Massive Open On-Line Course) offered by John Hopkins School of Nursing on "Care of Elders with Alzheimer's Disease and other Major Neurogonitive Disorders." Did any of our readers participate? We welcome reports on your reactions to the experience.
Now there's a another MOOC opportunity, this time from the University of Tazmania on "Understanding Dementia." The 9-week course is described as "building on the latest in international research on dementia." And, true to the spirit of MOOCs, it is free and open to anyone to register, here. The course begins Monday, March 31 -- so hurry to register.
Saturday, March 29, 2014
The Department of Labor recently posted a Final Rule that changes how the Fair Labor Standards Act is interpreted for domestic service. Of special interest is how the Rule impacts shared living programs under Medicaid.
The Department of Labor has also created guidance to assist stakeholders in determining whether an entity paying a direct care worker through a shared living arrangement is required to comply with the FLSA’s minimum wage and overtime requirements. The guidance also describes how certain FLSA principles apply to shared living arrangements.
These changes become effective January 1, 2015.
Friday, March 28, 2014
Research affirms strategies to help older adults avoid institutional care, even in low-density areas
For those of us who live up north (well ok, just about anywhere in the U.S.) and experienced the prolonged winter (it is officially Spring), we know it cost more to stay warm this winter. AARP released a February report on Winter Heating Costs. The report notes that
Although consumption data show that low-income older consumers tend to use less heating fuel than higher-income groups, high winter heating costs are likely to be a greater burden on this group than on higher-income older consumers who have greater financial resources available to meet these costs.
Thirty percent of older households have total family incomes of less than $20,000, and they typically experience the greatest energy burden. This trend is projected to continue throughout winter 2013–14. The burden is highest for those using fuel oil for heating. For example, age 65+ households heating with fuel oil with incomes under $20,000 will spend almost one-fifth of household income on heating costs, while all-income households heating with fuel oil will spend around 5 percent of total household income on heating costs. (citations omitted).
This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.
This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life." Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc. This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage.
I ask the students to brainstorm Grandmother's options. Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period.
Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission. Good job! Except that I am usually careful in my hypo not to make Grandchild overtly manipulative. And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.
This week, students also suggested "failure of consideration" as grounds for rescission. There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:
- Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
- Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member.
After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families. In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old. The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law.
Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?
Thursday, March 27, 2014
- Get a copy of medical records, which every patient has a right to under federal law. These records can provide important information about what happened -- and what might have gone wrong.
- If the patient has died, order a forensic autopsy, which includes toxicology tests. Autopsies -- though not always 100 percent accurate -- are the most reliable means of finding out what happened in an unexpected death. Hospitals do not routinely conduct autopsies, but the family has the right to get one.
- Consider calling an attorney. Be aware that the standards for proving medical malpractice are much higher than most patients expect. Attorneys take few cases because they're expensive to pursue and difficult to win.
Friday, April 25, 2014
1-4:30 p.m. EDT
Stetson University College of Law
This webinar will address challenging SNT administrative issues faced by trustees, attorneys, financial planners and money managers involved in Special Needs Trusts. The faculty of nationally known leaders in the field of Special Needs Planning will update the audience on significant topics for administering a Special Needs Trust and at the end of this webinar, you will be able to understand:
- The four standards used to determine when and how a trustee should make a distribution from a trust
- How these standards are normally worded and interpreted
- The rulings of the most influential court decisions on special needs, and how to apply those holdings to your practices
- The provisions of the Affordable Care Act to beneficiaries of special needs trusts
The webinar will also feature a Q&A session. Questions can be submitted ahead of time on any topic. The cost to participate in the webinar is $125.
I read a poignant post on March 18, 2014 from Sheila Blanchette about her mom's decline from Alzheimer's. Time is an Asterisk is a moving commentary on Alzheimer's impact on her interaction with her mother. She talks about the fickleness of memory for all of us. She recounts a recent visit with her parents and describes how Alzheimer's erosion of her mother's memory has impacted her conversations with her mother. "My conversations with my mother were even more unreliable, a dizzy, endless loop of repetition and confusion. The confusion was not just on her part, but on mine as well. Who is she talking about now? Where is she in time? Does she know where she is right now? And the biggest question of all, does she know who she's talking to? The answer to that last question was an emphatic no."
She describes "safe" topics of conversation and muses about not correcting her mom when she got something wrong. She tries to think about the confusion from her mother's perspective: "I can only imagine how frightening it must be, not knowing where you are or who you're talking to. Or to have a glimmer of the very big thing you just forgot, that this is your daughter sitting across from you. What it is like when Alzheimer's creeps in, distorting your memories and the very essence of who you are? How scary is that feeling? Because after all, who are we without our memories?"
After her parents' visit, she reflects on what losses will have occurred by the next time she sees her mother, and describes Alzheimer's as a "thief". She then writes about song lyrics, and how she misunderstood certain phrases in popular songs (haven't we all done that at some point). She writes about a song by the Talking Heads, where she thought they sang "time is an asterisk."
Ms. Blanchette goes on to tie together the song lyric discussion to the title of her post:
An asterisk is often used to show the omission of a letter, as in, "the f***ing Alzheimer's are knocking on the door." Or it can be used to indicate information a writer leaves out of an article but is providing in a footnote at the bottom of the page, in case the reader would like to learn more.
I am going to continue to sing my lyric every time I play that song, because when it comes to Alzheimer's time truly is an asterisk, editing the words and the memories, leaving only footnotes for the loved ones who fill in the missing information.
The New England Journal of Medicine (NEJM) has published an article on March 27, 2014, on Pinching the Poor? Medicaid Cost Sharing under the ACA. The article, as the title implies, examines cost-sharing, describing it as "a growing trend in Medicaid — one that raises important questions about balancing state budgetary concerns and appropriate incentives with adequate protections for patients." The article examines the objectives of cost-sharing: personal responsibility, and lower spending with greater efficiency. The article discusses the potential burden cost-sharing may have on beneficiaries as well as the negative outcomes that can occur from requiring cost-sharing. The article concludes that there needs to be sufficient oversight and evaluation to determine the effectiveness of imposing cost-sharing on beneficiaries:
Cost sharing is a complicated policy tool. Policymakers have a responsibility to monitor new programs to understand their impact on costs, quality, access, and health and to use the knowledge that is gained to more effectively support the ability of Medicaid enrollees to make good decisions regarding health care. Ultimately, if this sort of flexibility encourages more states to expand Medicaid, most low-income adults will be better off for the effort — since some cost sharing is almost certainly preferable to being left without any coverage at all.
Occasionally on this Blog we post to studies suggesting cutting edge scientific developments connected to Alzheimer's. For example, last October, our colleague Professor Dayton, provided a link to a study in England described as a possible "breakthrough" in Alzheimer's research related to misfolded proteins in the brain. John O'Connor, the executive director for McKnight's Long-Term Care News, recently offered his own reaction to such news, following release of a different study:
"Here we go again: This week saw the release of yet another breathless study claiming the cure for Alzheimer's disease is getting closer — maybe.
The latest incantation is a report in Nature Genetics. This entry touts an international study of the disease that may help us unlock a cure. Unless, of course, it doesn't.
It seems like we get treated to at least one or two of these “important breakthrough” studies every month, sometimes more. And the plot seldom varies: Earnest investigators working countless hours have issued a report that may bring us closer to a cure. Then, tucked somewhere in the back is a mention that, ahem, more research is needed."
As with Mr. O'Connor, I suspect many of us have experienced "breakthrough fatigue" in the area of Alzheimer's research. Nonetheless, I am going to point to another study, this time suggesting a blood test targeting biomarkers that "may be sensitive to early neurodegeneration of preclinical Alzheimer's disease," and thus predictive of "either amnestic mild cognitive impairment or Alzheimer's disease within a 2-3 year time frame." The report on "Plasma Phospholipids Identify Antecedent Memory Impairment in Older Adults" is in the March 2014 issue of the journal Nature Medicine and despite the somewhat intimidating title, it makes for interesting reading.
But my real question is not about the value of the study, or as John O'Connor's essay suggests, concerns about the potential for hype to generate false hope, but whether many would actually be horrified by a predictor of future cognitive impairment within 2 to 3 years, even (especially?) one with "over 90% accuracy." I can think of several people I've known who worried about their "failing memory," sometimes for years, but who expressly rejected seeing a specialist for testing. Without a solution, such tests might be the ultimate example of the unfunny joke: Do you want to hear the good news or the bad news first? We know what's going to happen to you -- but you aren't going to like it.
Wednesday, March 26, 2014
I received an email from the National Academies Press announcing the release of two great resources, publication of summaries from two workshops.
You can buy a six volume compilation, described as:
Global Violence Prevention: Six-Volume Set is a set of reports issued by the Forum. These reports summarize evidence-based and impartial multidisciplinary exchanges of information and ideas concerning violence prevention. The reports illuminate policy, research, and practice priorities worthy of further study or investment and gather information on the scientific basis and public health needs pertinent to global violence prevention.
You also have the option of purchasing for $44.00 The Evidence for Violence Prevention Across the Lifespan and Around the World which:
[I]s the summary of a workshop convened in January 2013 by the Institute of Medicine's Forum on Global Violence Prevention to explore value and application of the evidence for violence prevention across the lifespan and around the world [and]examined how existing evidence for violence prevention can continue to be expanded, disseminated, and implemented in ways that further the ultimate aims of improved individual well-being and safer communities. This report examines violence prevention interventions that have been proven to reduce different types of violence ..., identifies the common approaches most lacking in evidentiary support, and discusses ways that proven effective interventions can be integrated or otherwise linked with other prevention programs.
You can also download it as a pdf for free here.
The Elder Abuse & Prevention workshop summary is also available for purchase for $45.00. Here is a description of this summary:
Using an ecological framework, this workshop explored the burden of elder abuse around the world, focusing on its impacts on individuals, families, communities, and societies. Additionally, the workshop addressed occurrences and co-occurrences of different types of abuse, including physical, sexual, emotional, and financial, as well as neglect. The ultimate objective was to illuminate promising global and multisectoral evidence-based approaches to the prevention of elder maltreatment. While the workshop covered scope and prevalence and unique characteristics of abuse, the intention was to move beyond what is known about elder abuse to foster discussions about how to improve prevention, intervention, and mitigation of the victims' needs, particularly through collaborative efforts. The workshop discussions included innovative intervention models and opportunities for prevention across sectors and settings.... Elder Abuse and Its Prevention discusses the prevalence and characteristics of elder abuse around the world, risk factors for abuse and potential adverse health outcomes, and contextually specific factors, such as culture and the role of the community.
It can also be downloaded for free as a pdf here.
The Employee Benefits Research Institute (EBRI), has released the 2014 Retirement Confidence Survey (Issue Brief 397, March, 2014). The 2014 Retirement Confidence Survey: Confidence Rebounds—for Those With Retirement Plans runs 34 pages and includes nifty charts and great information for our students. Just to give you a sense of what is included in the report, here are some excerpts from the "at a glance" summary on page 1:
- The percentage of workers confident about having enough money for a comfortable retirement, at record lows between 2009 and 2013, increased in 2014...
- This increased confidence is observed almost exclusively among those with higher household income, but it was also found that confidence was strongly correlated with household participation in a retirement plan...
- Retiree confidence in having a financially secure retirement...has also increased, with 28 percent very confident ... and 17 percent not at all confident...
- Fifty-eight percent of workers and 44 percent of retirees report having a problem with their level of debt...
- Worker confidence in the affordability of various aspects of retirement has also rebounded...
- Sixty-four percent of workers report they or their spouse have saved for retirement... Here again, participation in a retirement plan mattered: 90 percent of workers participating in a retirement plan had saved for retirement, compared with just 1 in 5 of those without a retirement plan.
- A sizable percentage of workers report they have virtually no savings and investments...[with] 36 percent say they have less than $1,000 (up from 28 percent in 2013), although those who indicate they and their spouse do not have a retirement plan ... are far more likely than those who have a plan to be in this group... Moreover, 68 percent with household income of less than $35,000 a year have savings of less than $1,000. Of those who have saved for retirement, only 38 percent report savings of less than $25,000. (emphasis added).
- Cost of living and day-to-day expenses head the list of reasons why workers do not save (or save more) for retirement...
In addition to the report, there are a number of fact sheets devoted to specific topics such as confidence, preferences on savings and taxes, retirement expectations, comparisons by age and by gender, retirement preparation and perceptions about Medicare and Social Security.
Tough Question: Evidence Demonstrates Potential for Unsatisfactory Care in Nursing Homes, So Why Expect Better Care at Home?
Howard Gleckman at Forbes writes about the elephant in the room of home and community-based care. Will it really be better than the care in a nursing home?
Hat tip to ElderLawGuy Jeff Marshall for pointing the way to this thoughtful piece.
Perhaps more than most who teach Elder Law, I spend a fair amount of time on provider perspectives on long-term care, examining industry concerns. I've often been struck by a disconnect in communication between lawyers who represent providers and those who represent families and individuals. My impression is there are often important lessons to be learned from "the other side."
Along that line, here is a one minute video from Merit Senior Living, a company that offers administrative services such as management of human resources and payroll for staffing of various forms of senior living. Perhaps some of the lessons that can be learned here are unintentional?
Tuesday, March 25, 2014
On March 4, 2014, the Office of Management and Budget released President Obama’s budget for fiscal year (FY) 2015, which includes provisions related to federal spending and revenues, including Medicare savings. The President’s budget would use federal savings and revenues to reduce the deficit and replace sequestration of Medicare and other federal programs for 2015 through 2024. This brief summarizes the Medicare provisions included in the President’s budget proposal for FY2015.
The President’s FY2015 budget would reduce Medicare spending by more than $400 billion between 2015 and 2024, accounting for about 25 percent of all reductions in federal spending included in the budget. Most of the Medicare provisions in the FY2015 budget are similar to provisions that were included in the Administration’s FY2014 budget proposal. The proposed Medicare spending reductions are projected to extend the solvency of the Medicare Hospital Insurance Trust Fund by approximately five years.
- More than one-third (34%) of the proposed Medicare savings are due to reductions in payments for prescription drugs under Medicare Part B and Part D. The single largest source of Medicare savings would require drug manufacturers to provide Medicaid rebates on prescriptions for Part D Low Income Subsidy enrollees, a proposal which was also included in the President’s FY2014 proposed budget.
- One-third (33%) of the proposed Medicare savings are due to reductions in Medicare payments to providers, most of which are reduced payments to post-acute care providers (Figure 1). The baseline of the proposed budget assumes no reduction in Medicare payments for physician services, relative to current levels, from 2015 through 2024, in contrast to the sustainable growth rate formula (SGR) under current law, which calls for significantly lower physician payments during this 10-year period. The projected cost for adjusting the baseline for this period is $110 billion, plus additional amounts associated with eliminating cuts in 2014.
- About 16 percent of the proposed Medicare savings are due to increases in beneficiary premiums, deductibles and cost-sharing.
The National Consumer Voice for Quality Long-Term Care has announced the creation of "the first-ever free clearinghouse for long-term care information... The Clearinghouse is a one-stop-shop of information on a range of long-term care issues...." The announcement describes the Clearinghouse:
The Clearinghouse includes a variety of types of resources: best practices and fact sheets, reports and briefs, state and federal legislation, presentations, research and statistics, training materials and presentations.
The Clearinghouse's resources cover a wide range of issues like: abuse, neglect and exploitation; assisted living, nursing homes and home and community-based services; consumer's rights; family; ombudsman program; person-directed care; quality of care and quality of life; staffing and worker issues; survey and enforcement; and systems advocacy.
The Clearinghouse website explains the reasons for the creation of the Clearinghouse:
advocates and others who work with and for consumers of long-term care, services and supports frequently need information quickly to support and enhance their advocacy work. Information-sharing is core to our mission, and the Clearinghouse provides a way to coordinate and compile information. The National Consumer Voice for Quality Long-Term Care has developed the first-ever clearinghouse for long-term care information geared toward promoting effective advocacy and consumer-directed care. The Clearinghouse’s objectives are twofold: 1) Reduce the time advocates and others spend searching for credible information on a wide range of long-term care topics; and 2) establish a one-stop-shop of information on a range of long-term care issues, particularly for those who wish to advocate for consumers.
William and Mary Law School student Elizabeth Hill takes on the challenge of discussing sex and seniors in her Student Note, "We'll Always Have Shady Pines: Surrogate Decision-Making Tools for Preserving Sexual Autonomy in Elderly Nursing Home Residents" for the Winter 2014 issue of the William and Mary Journal of Women and the Law. She concludes:
"With changes to state law to expand the tool of power of attorney, residents who want to retain autonomy in decisions about their bodies and relationships could employ surrogate decision-making tools like durable powers of attorney and advance healthcare directives to ensure that they are able to participate in and enjoy sexual activity even after the have lost the capacity to consent and even if their families disapprove of the activity. Perhaps the most difficult aspect of adopting such a mechanism would be putting aside our personal and preconceived notions about sexual conduct in order to allow others to experience a little happiness in an otherwise gloomy setting."
The title for the article, alluding to Humphrey Bogart's famous line in Casablanca, is a clever introduction to a sensitive topic.