Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.
Thursday, May 26, 2016
We all know folks who are the glass half-full type (optimist), as well as the glass half-empty type (pessimist). When one talks to those folks, how those folks interpret what they hear depends on what "glass type" they are. The Journal of the American Medical Association (JAMA) ran a story about a study, Prevalence of and Factors Related to Discordance About Prognosis Between Physicians and Surrogate Decision Makers of Critically Ill Patients. According to the abstract, "[m]isperceptions about prognosis by individuals making decisions for incapacitated critically ill patients (surrogates) are common and often attributed to poor comprehension of medical information."
The authors noted how important it is for the health care surrogate to have information in order to make a health care decision for the patient. But, according to the study,
Numerous studies over the last 3 decades indicate that surrogates of patients with advanced illness often have optimistic expectations about prognosis. This is problematic because optimistic expectations are associated with more use of invasive treatments in dying patients and delayed integration of palliative care. Clinicians cite unrealistic expectations by surrogates as one of the most important barriers to high-quality end-of-life care in seriously ill patients.(citations omitted).
The authors look at some of the reasons for this disparity in viewpoint (including the lack of medical knowledge by surrogates). Here is one example of their findings regarding the disparity of views:
Physician-surrogate discordance about prognosis occurred in 122 of 229 instances (53%; 95% CI, 46.8%-59.7%). Among the 229 surrogates participating in the study, 98 (43%) were more optimistic than physicians and 24 (10%) were more pessimistic. Sixty-five instances (28%) were related to a combination of misunderstandings by surrogates and differences in belief between the physician and surrogate about the patient’s prognosis; 38 (17%) were related to misunderstanding only; 7 (3%) were related to different beliefs; and data were missing for 12.
The authors explore the reasons for the surrogates' glass half-full view and learned that the surrogates felt that a positive attitude: "would improve the patient’s outcomes or protect themselves from emotional distress"; was justified because they knew the patient better than the doctor, including knowing if the patient were a strong person; and/or was based on their religious beliefs.
The study also explored the glass half-empty views of surrogates. The study authors concluded that "[a]mong critically ill patients receiving care in ICUs, discordant expectations about prognosis were common betwTeen patients’ physicians and surrogate decision makers and were related to both misunderstandings by surrogates about physicians’ assessments of patients’ prognoses and differences in beliefs about patients’ prognoses."
The article is available here for free
Senior residential care provider Life Care Centers of America is the focus of recent legal news, including:
- KOAA TV 5 News: Colorado Jury Awards $5.5 million in wrongful death suit against Life Care Center of Pueblo.
- Chattanooga Times Free Press: Settlement May be Brewing in Government's Longtime Federal Case alleging False Claims - Billing Practices by Life Care Centers of America
The percentage of older Americans living below the federal poverty line has decreased by two-thirds since 1966. That year, according to data from the Pew Research Center, 28.5 percent of Americans age 65 and over were poor. By 2012, that number had declined to just 9.1 percent.
But we may be at the end of that happy trendline. I think that over the next five to 10 years we will see a dramatic reversal in the economic fortunes of millions of our oldest residents. That has profound implications for governments at all levels.
Discussing how we fund retirement (the 3-legged stool), the author notes the changes in pension plans, the low amounts saved and the higher amount of debt. This is not particularly new to those of us who teach elder law. But consider the following from the author:
You can put off retirement, and many are. The labor force participation rate for those 65 and older increased from 12.4 percent in 1994 to 18.6 percent in 2014. But you can’t put off aging. The collapse of incomes for this group when they no can longer work is going be a double hit for government, decreasing the taxes they pay just as they need more public services.
The author calls on local governments to be planning for this scenario: "the consequences of dramatic increases in the older poor, including looking at affordable housing, transit and health care." Noting the potential power of the ballot box, the author concludes "Given the size of the baby boom population, a return to the poverty rates that existed among aging Americans before the War on Poverty would result in more than 8 million newly impoverished seniors. They’re not going to sit quietly on a street corner with a tin cup."
Plaintiffs' Class Certified in Dispute over LTC Insurance Coverage for Care by "Managed Residential Communities" or "Assisted Living Services Agencies"
As we've reported fairly often on this Blog (see e.g., here, re California litigation), the long-term care insurance (LTCI) industry has been battling disputes on many fronts. One of the fronts is whether insurers can deny benefits to pay for care provided in settings other than "skilled nursing facilities." On March 1, 2016, a federal court in Connecticut granted class certification to estates and policy holders who are challenging denial of coverage for stays in "managed residential communities" (MRCs) in Connecticut or to cover services provided through "assisted living services agencies" (ALSAs). In Estate of Gardner v. Continental Casualty Company, 2016 WL 806823, the court agreed the plaintiffs had satisfied the class certification requirements for "numerosity," commonality, and typicality of issues, as well as establishing grounds to argue "imminence of injury" to support a claim for injunctive relief:
While Plaintiffs do seek monetary relief, it appears to the Court that what they primarily seek is forward-looking relief. Plaintiffs purchased long-term care policies, presumably with the expectation that they would utilize their coverage over a long term. Any adequate remedy would have to ensure that they could obtain coverage for claims prospectively. For that, an injunction is required. Moreover, Plaintiffs leave no ambiguity about the content of the injunction they seek: an end to Defendant's alleged policy of denying claims for assisted-living facilities across the board. This is exactly the type of relief Rule 23(b)(2) was designed to facilitate. Because Plaintiffs' proposed Rule 23(b)(2) class satisfied all of the requirements of Rule 23, certification is proper.
For more on the background of the Connecticut case, see "Connecticut class action accuses insurer of denying assisted-living claims."
Tuesday, May 24, 2016
A very sad story hit the news last week. A Florida man killed his chronically ill wife because they couldn't afford her prescriptions. Florida Man Says He Killed Sick Wife Because He Couldn’t Afford Her Medicine, Sheriff Says explains that the husband in the over 50 year marriage told the law enforcement officer who responded to the call that "[t]he cost of her medications had become so burdensome that they could no longer afford it ... [s]o on Monday morning while she was sleeping, he shot her in the head...." According to the article the husband has been charged with premeditated first degree murder. A representative of the Sherriff's office was quoted as saying that the husband "was perfectly clear on that he was going to be arrested and go to jail, but again, he felt that this is where it had gotten to him and this was his course of action... showed emotion and he was very clear that he was out of options in his mind.” At the time of the story, according to the article, there was no information about their health insurance status.
This story notes the issues with elders on fixed incomes and the costs of medications. There have been stories in the press of late about price spikes in certain medications and the Senate Committee on Aging has held two hearings this year on the topic, available here and here.
On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community. In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children." The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.
On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of] 60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.
The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:
Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.
The finding of breach appeared to have been predicated on the contract's specified grounds permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.
Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.
In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers. Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.
Monday, May 23, 2016
The Association for Gerontology in Higher Ed annual meeting is set for March 9-12, 2017 in Miami. The call for abstracts closes June 1, 2016 with the conference's theme "The Future is Here: Educating a New Generation of Professionals in Aging Worldwide." A number of tracks will be offered, including on these topics:
Curriculum and Policy Issues
Translating Research to Education and Training
Program and Curriculum Development
Diversity and Social Justice for Older Persons
More information about submitting an abstract is available here.
California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law
I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S. For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs. At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims. This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc. In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:
We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist. What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.
The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."
The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities. The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.
This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act.
Sunday, May 22, 2016
Two ABA commissions and two ABA sections have created the PRACTICAL supported decision-making tool for lawyers which "aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship." PRACTICAL is the acronym for the steps the lawyer takes to identify the options both during the interview with the client and after when considering the case. The tool is available both as a fillable pdf or a word document. There is also an accompanying resource guide in pdf.
Download your copy now!
Friday, May 20, 2016
I had mentioned previously that I was looking at the Genworth annual cost of care survey. As a corollary, Genworth has information about who provides care, referred to as The Expanding Circle of Care. The website mentions the caregivers, with "[t]he Beyond Dollars Research reveal[ing] 5 key insights on the true impact of long term care." The Expanding Circle of Care Beyond Dollars 2015 explains the 5 "key insights" in the executive summary. The circle of care is explained as:
The financial, physical and emotional demands of providing care for a loved one can sometimes be more than a single caregiver can handle. The good news is that more family members are helping provide care. The opportunity to plan for the likelihood of needing long term care before a crisis situation occurs remains large. Our research has shown that a "Circle of Care" often forms around the care recipient, involving people who provide different levels and types of support.
The second insight is that although caregivers are positive about their role of caregivers, they note that "[c]aregiving can negatively impact health & well-being", including familial relationships and interactions with friends. The third insight is instructive regarding the future: "Caregivers’ savings and retirement funds are at risk"
Caregivers who help provide financial assistance for the care of their loved ones estimate that they pay, on average, a total of about $10,000 in out-of-pocket expenses.
That’s up from an average of $7,285 in 2010. Those financial expenses can include everything from household expenses, personal items, or transportation services, to payment of informal caregivers or long term care facilities.
Most caregivers did not anticipate or plan for this expenditure. In many cases, they are cutting back on personal spending and savings. More significantly, some may be jeopardizing their own financial futures.
It follows logically then that the fourth insight builds from the third one: "Caregivers’ careers and livelihoods are impacted by providing care." The caregivers who work reported a definite impact on their jobs, which in turn impacts the caregiver's bottom line. "Absences, reduced hours and chronic tardiness can translate into a significant reduction in a caregiver’s paycheck."
The executive summary is available here.
Thursday, May 19, 2016
Medicaid As a Funding Source for Non-SNF Senior Living? Upcoming Webinar Offers a Provider Perspective
New Jersey allows Medicaid dollars to be used in assisted living; Pennsylvania does not (or at least, not yet). What is the rule in your state? And if you want to see the rule change, how do providers feel about the potential to expand availability of public funding dollars to settings outside the so-called traditional nursing home?
That perspective may be part of an upcoming Webinar entitled "Assisted Living and Medicaid: Will it Kill A Great Product?" The fee-paid program is offered by Levin Associates, scheduled for June 2, 2016. Here's part of the webinar description:
When purpose-built and professionally managed assisted living burst on the seen 25 years ago, consumers were starved for the product. It became the hottest development product in seniors housing within a few economic cycles, and in its early life it became an upscale alternative to old skilled and intermediate care facilities. Then Medicaid waivers came into existence for assisted living, and some of the new properties had a Medicaid census up to 20% or higher in some states. From a state government budget perspective, assisted living saved the state money as a cheaper alternative for appropriate residents than a nursing facility. Some states require a Medicaid or income-qualified set aside for a certain number of units in new assisted living communities. Old nursing facilities that can't compete in the subacute/rehab skilled nursing market may be turned into a modern Medicaid ALF. What started as a private pay product may evolve into a state-funded product, at least for some percentage of the population.
While I was on the Genworth site looking at the looking at their annual Cost of Care survey findings, I noticed their simulated aging project, R70i Aging Experience. The Genworth R70i Aging Experience, according to the website "uses state-of-the-art technology to help people step into their future selves and directly experience the physical effects associated with aging. The experience reinforces the importance of thinking about future long term care needs and talking to loved ones about how they would like to age." The website offers interactive controls so the user can examine certain points of the "aging suit" as well as a video that shows how the suit functions along with a narration. This would be really cool if we could have one for our students to use, so they can experience it firsthand. (If anyone from Genworth is reading this and wants to donate one to us, I promise we'll share with other educational institutions :-))
Wednesday, May 18, 2016
The Stanford Center on Longevity has a new report evaluating the effect of emotion on practices used to ensnare older adults. In Heightened Emotional States Increase Susceptibility to Fraud in Older Adults, the researchers "examined whether inducing high-arousal positive and high-arousal negative emotions . . . increases susceptibility to fraud" and whether the effects vary with age. They found, for example that:
- Excitement and anger can both serve to increase older adults likelihood of purchasing falsely advertised items, while these emotions did not show the same effect in younger adults.
- "Advertisement credulity" was more often a factor evaluated by younger adults than older adults when deciding whether to make a purchase.
The study was funded through the Financial Fraud Research Center by AARP and the FINRA Investor Education Foundation. In reading the short report, I was actually reminded of my 7th grade teacher, Mr. Tameron, who had an entire unit on how advertising can unduly influence buyers' behavior, and darned if he didn't make exactly this same point (although not separated by customer age), urging us to recognize that emotions such as outrage, attraction, anger, and fear can be used to manipulate customers' responses to advertising. Mr. T, you were ahead of your time!
My thanks to Professor Laurel Terry, Dickinson Law, for sharing this link. Laurel and Howard's son, Devon, graduates next month from Stanford. Congratulations, Devon (even as I suspect I'm going to miss getting this easy source of Stanford Longevity Center news)!
We have blogged before about the idea of aging that is something to be "cured". The recent article in the New York Times explained some cutting edge research about fighting aging. Dogs Test Drug Aimed at Humans’ Biggest Killer: Age explains about a clinical trial with dogs that has implications for humans "the trial also represents a new frontier in testing a proposition for improving human health: Rather than only seeking treatments for the individual maladies that come with age, we might do better to target the biology that underlies aging itself." The drug being tested on dogs was previously tested on mice and "improved heart health and appeared to delay the onset of some diseases in older mice" but there is no guarantee that the same result will be achieved with dogs.
According to the article, age itself serves as a huge risk factor for a number of fatal diseases, so "[a] drug that slows aging, the logic goes, might instead serve to delay the onset of several major diseases at once." "Geroscience" that is "the study of aging’s basic biology" according to those quoted in the article, hasn't received a lot of attention. There's some genius in the approach of testing this drug with dogs, given American's love affair with their dog family members.
“Many of us in the biology of aging field feel like it is underfunded relative to the potential impact on human health this could have,” said Dr. Kaeberlein, who helped pay for the study with funds he received from the university for turning down a competing job offer. “If the average pet owner sees there’s a way to significantly delay aging in their pet, maybe it will begin to impact policy decisions.”
The article explains that research has been more "disease-specific" rather than globally looking at slowing down aging. Although the article does mention some projects that are specifically looking at slowing down or reversing aging. The article also explains the challenges for research in this field. What would be the results to humans if this research proves successful? A longer, healthier life. And if it isn't successful? Dr. Kaeberlein, explained: “I would argue we should be willing to tolerate some level of risk if the payoff is 20 to 30 percent increase in healthy longevity,” he said. “If we don’t do anything, we know what the outcome is going to be. You’re going to get sick, and you’re going to die.”
Tuesday, May 17, 2016
I've reached that annual ritual known as "let's clean off my desk because that is more fun than grading exams." Always a good opportunity to find a few treasures that escaped my closer attention during the academic year. And along that line, I was intrigued to find the two-part series on "Alternative Litigation Finance," written by Holland and Knight attorneys Robert Barton and Wendy Walker.
What Is Alternative Litigation Finance? The structure of a litigation finance deal can vary significantly depending on the type of case, the company involved, the stage of the case when funding is sought, the amount of money requested, and many other factors. At its core, though, ALF is the advancement of funds to attorneys or clients by a thirdparty company to pay legal fees and costs related to litigation. In general, a litigation funder makes a return on the funds, whether through interest earned over the life of the advance, a multiple of the advanced amount, or a percentage of the recovery paid to the client at the conclusion of the matter. The transaction is typically nonrecourse, meaning the company only recovers to the extent that the client recovers. The funder does not look to the client’s other assets, beyond the settlement or judgment, to satisfy the repayment of the funds. In some circumstances, however, the client may offer additional collateral to secure the amount needed.
To provide maximum protection for the client, at the outset of a new matter, an attorney should request a written confidentiality agreement among the funder, the client, and the attorney. The agreement should provide the express recognition that any nonprivileged, but confidential, information that is shared is done so with the intent to maintain its confidential nature. Although not a full guarantee against future disclosure, such an agreement does demonstrate the intention of the parties and has been a persuasive argument to courts evaluating disputed discovery issues.
These articles originally appeared in the ABA's publication, Probate and Property, with the second of the two articles published in the November/December 2015 issue. (The good news is that by waiting a bit, both of these articles are now available on the web, and not just through the ABA subscription.)
Monday, May 16, 2016
Have you ever been surprised by a loved one who, even with Alzheimer's, will sing or recite poetry? If you've had that experience, you will probably be as intrigued as I was by the Alzheimer's Poetry Project. Here are the details.
Sunday, May 15, 2016
We have posted before about family caregivers and their importance. AARP's May 10, 2016 blog post, Eldercare Primarily Concerns Older Workers and Their Employers, Right? Think Again, explained that "[f]or employers big and small, the need to support workers who also provide unpaid care for a family member is a growing reality." A huge number of family members who work (60%) also serve as family caregivers. Here's an important point about those 60%, slightly over 50% of them are at least 50 years old. But caregiving is not just an elder law issue, because there is a significant number of younger caregivers too. Almost three-quarters of millenials reported that they were caregiving and working. The blog post ends with the suggestion that
"[a]dvancing a culture of understanding about eldercare needs is especially important to help make the workplace more supportive of workers who are also family caregivers — many of whom are in their prime working years."
As reported in several financial news services, including McKnight's Long-Term Care News here, HCR ManorCare, owner/operator of a large number of skilled nursing and assisted living properties, is to be spun off by its corporate parent, HCP Inc., into the hands of "an independent real estate investment trust" called, appropriately enough, "SpinCo."
Certainly this seems to be a move to improve the financial position of HCP by separating the nursing home operations from independent living operations; it remains to be seen whether it also allows "troubled" HCR ManorCare to resolve concerns about quality of care and billing practices. The business history of ManorCare, with all of its various partners and name changes, probably serves as a marker for changes throughout the skilled care industry. For ManorCare's own perspective on its history, see "Our History Is Still Being Written."
Friday, May 13, 2016
Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?
My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients. This week the ABA Journal also linked to the AP story, plus tied the statistical reports of a nation-wide increase in complaints about evictions, rejections and discharges to one man's struggle to return to his California care center following what should have been short term hospitalization for pneumonia.
The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals. But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture. Anderson experienced a severe brain injury at age 55 following a heart attack, but his younger age, lack of "private pay resources," and a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.
The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources. Certainly there are many -- and probably too many -- individuals in facilities when they could be maintained at home if there was more funding to supplement family-based care.
At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care. It is about more than mere eviction, discharge and rejection statistics. The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities. But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.
My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.