Tuesday, November 4, 2014
Tommorow we have respite, for at least a few months, from the barrage of political ads. In the meantime, I have to say that this season there seems to be an exceptionally high number of television ads involving the candidates' own family members, and the older the better, it seems.
Former President Jimmy Carter, age 90, has been campaigning across Georgia on behalf of his grandson Jason. In Pennsylvania, one governor candidate has his mother on commercials and appearing at campaign stops, explaining how her son knows the importance of protecting seniors. In Maryland, a judicial candidate for a probate court position, explains that he decided to run after "caring for several elderly family members for several years." Perhaps you have examples from your state?
It could be that such a strategy reflects a hard truth, that younger voters are largely alienated by the current political scene and unlikely to vote. A core community of potential voters? Those age 60+.
November 7, Election Post Script: Jimmy Carter's son Jason was defeated in his campaign for governor of Georgia. Tom Wolf's mother joined in the celebration of her son's election to governor of Pennsylvania. Thomas Walsh was defeated in his general election bid to retain his seat as an Orphans Court Judge in Maryland. Older relatives are not, it seems, a magic bullit for candidates.
Who amongst us has not heard of the Jimmo case? You know that case---where Vermont Legal Aid and the Center for Medicare Advocacy (full disclosure-I'm on their board), sued CMS over the improvement standard (which isn't a requirement for Medicare). Well, the plaintiffs were victororiou and CMS amended the manuals.... more details and a host of articles about the Jimmo settlement and what it means for clients is available on the CMA website.
But did you ever think about outcome for the plaintiff, Ms. Jimmo? Guess what, she didn't get benefits as part of the settlement...in fact, she had to apply again with CMS for her benefits, and she has finally prevailed!
Susan Jaffe reported in Disabled Vt. Senior Wins Medicare Coverage After 2nd Lawsuit that CMS has finally awarded Ms. Jimmo benefits. The story explains that after the first lawsuit, she applied for benefits and was denied. Thus starts round two. Denied in April, she sues in June and now it is the end of October, 2014. Ms. Jimmo "argued [in her second suit that] Medicare should have paid for the nursing care and other skilled services she received at her home during 2007. On Wednesday, [October 29, 2014] Medicare officials agreed, invalidating an April ruling that she was not entitled to coverage because her condition had stabilized and she was not improving."
Although CMS officials didn't comment for the story, the article contains this "Medicare officials agreed Wednesday that the Medicare Appeals Council’s denial “shall have no remaining force or effect.” Medicare will now pay Jimmo’s home health agency nearly $12,000, as well as her attorney fees." My favorite part of the story (other than the ending) is this from Judy Stein, executive director of the CMA:
“This should give hope to other people who are going through the Medicare appeals process,” said Judith Stein, executive director of the Center for Medicare Advocacy, which filed the original class action lawsuit with Vermont Legal Aid and negotiated both settlements. “It’s helpful to know that people will get a fair shot for an appeal because if Mrs. Jimmo couldn’t, who could?”
Good news for today!
Monday, November 3, 2014
The Ohio Court of Appeals, relying on a Sixth Circuit decision that interpreted Ohio law in Hughes v. McCarthy (2013), has now determined that a wife's purchase of an annuity with funds in excess of her community spouse resource allowance after her husband's admission to a nursing home, was not an improper transfer. The court's ruling permits her husband to qualify for Medicaid coverage for his long-term care without any penalty period.
A key to the court's October 22 ruling in Koenig v. Dungey, 2014 WL 5361644, was recognition that use of $121k of "joint funds" to purchase a five-year, actuarially sound spousal annuity was permitted by the language of federal laws, when the "transfer occurred after institutionalization but preeligibility."
In part, the attempts by some states to block use of annuities to convert at least a portion of marital assets into exempt spousal income, depends on states that have adopted tighter language than the federal law. Along that line, Pennsylvania attorney Kemp Scales shared with me potentially relevant language from the U.S. Supreme Court, when construing the purported effect of one state's attempt to capture proceeds of a tort recovery in order to reimburse the state for its expenditures under Medicaid. In Wos v. E.M.A., 133 S.Ct. 1391, 1400 (2013), the Court rejected application of a state lien, noting the conflict with federal law:
"A [particular state] statute that singles out Medicaid beneficiaries in this manner cannot avoid compliance with the federal anti-lien provision merely by relying upon a connection to an area of traditional state regulation."
In September, a federal district court judge in the case of Wagner v. McCarthy, pending in the Southern district of Ohio, granted preliminary injunctive relief favoring community spouses and prohibited state officials from imposing penalties "due to the transfer of community resources to purchase an actuarily sound anuity for the sole benefit of thier respective community spouse." In granting the injunction, the judge observed "there is little doubt that Plaintiffs will succeed on the merits," citing Hughes v. McCarthy.
In August, a somewhat more complicated Medicaid planning case, involving one spouse's transfer and sale of the couple's home, was argued before the Ohio Supreme Court and in an earlier Elder Law Prof Blog post we linked to the court's recording of the argument. A decision on that case, Estate of Atkinson, is still pending.
While I was in California last summer, a friend introduced me to Lillian Hyatt. I had already known of her by reputation and it was a real pleasure to speak to her in person and to continue our communications by telephone and mail. She's a dynamo, a person who does not take aging "lying down." Born in 1925 (believe me, she doesn't mind me disclosing that fact!), Lillian Hyatt is just about as active in "retirement" as she was during her many years as a writer, consultant, advocate, social worker, and university professor.
So I was especially interested to notice that when I clicked on a hyperlink embedded in a recent New York Times article about the impact of "falling" in an "aging nation," it took me to a press release about Lillian Hyatt. Back in 2008, Ms. Hyatt filed suit against a California Continuing Care Retirement Community (CCRC), to prevent it from banning walkers from the dining room of this high-end retirement community. She needed the walker to maneuver in what was, in essence, her home.
The lawsuit, asserting violation of the federal Fair Housing Act and other state and federal laws that address discrimination based on disability, was settled in 2010. Others have pursued similar claims in assisted living settings, public spaces and more. For more on the continuing impact of Ms. Hyatt's advocacy -- even though, curiously, she is never mentioned by name in the NYT article -- read "Bracing for the Falls of an Aging Nation." Advocates such as Ms. Hyatt challenge all of us to work harder to find a better balance between protection and respect for independence.
Sunday, November 2, 2014
Start your week with a laugh, or at least a smile.
One of the many blogs I read, GeriPal, ran an excellent parody for Halloween that had me howling....with laughter at the author's cleverness. Addressing Unmet Palliative and Geriatric Needs of Zombies is a hysterical must-read. The title gives you an excellent preview. And don't ignore the links in the article to the other sources, especially the one regarding the speed with which the Grim Reaper walks (at least the section on strengths and limitations).
Joe is now "Dr. Joe Duffy," having completed his PhD earlier this year. Pictured on the left, he also traveled to Liverpool in October to receive an all-U.K. national teaching fellowship award from the Higher Education Academy.
Joe's work is fascinating, using his many years of practical experience in social work to inform his academic writing on the importance of involving service users and caregivers directly in design of new systems for social care and social justice. His work also spans age groups, employing the same respect with all individuals, from youth to older adults, with recent articles on post-conflict change in Northern Ireland, palliative care, child protection and international human rights.
Congratulations, Joe, for your most recent honors -- so well deserved!
Catherine "Kitty" Haughey passed away in 2004, a widow without children of her own. Her godson lived with her the last two years of her life in County Armagh in Northern Ireland. She was leaving behind the lovely sounding "Annie's Cottage" and Larkin's, a family pub, along with a substantial sum of cash. Directions for distribution of her property were contained in a will dated two weeks before her death.
Ten years later, her godson has pled guilty to forgery of that will, although still trying to rationalize his actions by saying the new document that gave him the house and pub "reflected her dying wishes." He was finally compelled to concede he'd gone about "changing the will in the wrong way."
Indeed he did, with help in drafting and "witnessing" the will coming from a surveyor and a local doctor, both of whom earlier pled guilty to assisting in the forgery. They received suspended sentences.
The 53-year-old "godson," Francis Tiernan, tried to avoid prosecution in Northern Ireland by fleeing the court's jurisdiction and fighting extradition after he was discovered in the south of Ireland. His prison sentence is three years.
The actual will, dated 2003, had left Tiernan just £1000, while the reported value of the property was more than £1,000,000. An autopsy was performed following exhumation of Kitty Haughey's body, showing she died of natural causes. Her death came close in time to those of her only two siblings.
Hat tip to Dr. Joe Duffy of Queen's University Belfast for sending me this story. For another tale of misuse of legal documents to gain control over a pub in Ireland, see "The Lesson of the Irish Family Pub" that I wrote for Stetson Law Review in 2010. That time the "help" came from a lawyer who contended he was representing the "family" in preparing deeds. For more on Francis Tiernan's woes and indications of his colorful past, see links below.
Friday, October 31, 2014
ElderLawGuy Jeff Marshall has an interesting blog post, inspired by a recent visit to his doctor where he was asked whether he wanted a "high dose" flu shot. He hadn't heard of high-dose shots. He demonstrates the same careful approach to this personal decision -- lots of research! -- that he uses with legal analysis for his clients.
But, along the same line, I wonder whether we should be asking related questions of long-term care workers and agencies. In Arizona, where my parents (both age 89) live, I learned that many home-care agencies (at least those not "Medicare-Certified") do not provide their employees with such vaccinations, and indeed such workers are often treated by their agencies as independent contractors, so they may be without employer-sponsored health insurance coverage. Such workers struggle to make ends meet -- and flu shots can seem like a luxury. But those same workers probably need to be immunized to better protect their clients. It may be up to the seniors themselves to be aware of this issue, and to pay for and make arrangements for their aides to get flu shots (of any strength).
What are the rules and practices in your state for immunization of in-home care-providers for the elderly?
I often struggle with how far to go in asking for government regulation of risk-factors; but at a minimum, it seems like families need to make their own cost-benefit analysis on immunization of home-aides.
A week ago, CBS's Sixty Minutes interviewed Barbara Mancini, the Pennsylvania nurse accused of helping her elderly father to kill himself with an overdose of morphine. The charges were eventually dismissed by the court, concluding there was insufficient admissible evidence of the charged crime. The transcript of the program, titled "Ending Life," is now available; the daughter's account of her own actions should provide a basis for classroom discussion of several key legal and non-legal issues, including whether "medical orders" are needed to make so-called living wills effective, and the proper roles for hospice workers.
We have blogged on a number of occasions about whether some folks will be able to afford to retire, or have to delay retirement. A new report, Which Employees are Delaying Retirement and Why? was released by Towers Watson in September 2014. The report notes a certain “type” who is delaying retirement: less healthy, highly stressed and disengaged from their jobs” with financial necessity as the catalyst for delay. Interestingly, the report notes the type of plan also affects the timing of retirement, with “defined benefit (DB) plan participants retiring earlier than employees with only defined contribution (DC) plans, even where counter influences exist.” The report ties together some interesting trends and notes that delayed retirement isn’t just a passing fad
The number of workers planning to delay retirement is growing. Expected retirement delays are reflected in changes to workers’ planned retirement ages and/or retirement dates. In 2009, just over one-third of full-time employees planned to postpone retirement versus 43% in 2013, a nine percentage point jump … Conversely, a smaller group (12%) is planning to retire earlier — up from 5% in 2011. Perhaps the recent uptick in equity markets has improved affordability prospects for some…. Nearly three-quarters of those delaying retirement are planning a delay of three or more years … As a result, expected retirement ages are rising.
The article discusses the correlation between saving, the type of retirement plan and retirement timing and provides a profile of those delaying retirement. Charts that accompany the report provide great graphical information. A pdf of the report is available here
Thursday, October 30, 2014
According to an October 22, 2014 story from the Pew Research Center, Americans of all ages divided over doctor-assisted suicide laws. After referencing the story of Brittany Maynard and the recently released IOM report on Dying in America, the story mentions a study that Pew released on November 21, 2013 on Americans’ views on end of life care.
The October 22, 2014 story notes that last year’s survey found that an overwhelming percentage (66%) of Americans thought that folks had the right to die certain cases. There is less agreement on physician-aided dying, though it is close to even (47% favoring, 49% opposing). The article mentions that there is not that much of a variance based on age, but more so based on “racial and ethnic group, religious group and political ideology.” There is some variation based on age on other issues, however. For example, on the topic of continued treatment in the face of disease without hope for improvement, more younger people wanted their doctors to do all that could be done to keep them alive. (“53% of those ages 18-29 say this, compared with about a quarter (24%) of those ages 50 and older”). As far as decision-making at the end of life, about 25% of those under the age of 30 responded that they’ve considerd this a lot while a little over 40% have not really though much about it, if at all. This compares to the 65+ generation with 47% of those reporting that they’ve given the matter a lot of thought and 32% some thought.
Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.
To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case. For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers." The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death.
To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).
I can see this article providing a great platform for discussion, both among law students and practicing attorneys.
Wednesday, October 29, 2014
President Park Geun-hye called Tuesday for efforts to ensure a bill meant to reform the pension system for civil servants will pass the parliament by the end of this year. "We will pass onto our future generations a big burden that will not be bearable and deal a devastating blow to the state finances ... if the reform is delayed again," Park said in a Cabinet meeting. South Korea has delayed fundamentally addressing the issue of pensions for civil servants, despite being aware for decades that the current pension plan is not sustainable. Park made her case for pension reform, saying it would be a difficult and painful process but would only get worse if delayed further. Her comments came a day after her ruling Saenuri Party unveiled a set of measures to reform the pension program for civil servants in a way that reduces the government's growing pension deficit. The measures call for, among other things, a delay in eligibility for public servants' pension to 65 from 60, starting in 2031, and raising the proportion of contributions from 7 percent of salary to 10 percent.
Dementia is the leading cause of death for women in England and Wales, official figures show. The disease now kills more than three times as many women as breast cancer and thousands more than either heart attacks or stroke. Analysts say the rising numbers may be because doctors are becoming more aware of the disease and recording it on death certificates more frequently. Coronary heart disease remains the leading cause of death in men. For males, dementia is the third most common cause of death. The condition can be recorded as the sole cause of death, but is frequently found as an underlying condition. Many people with dementia ultimately die from pneumonia. The data, published by the Office for National Statistics (ONS) showed more than half a million people died in England and Wales in 2013.
LeadingAge is an organization representing "nonprofit" long-term care providers, including operators of CCRCs, home health agencies, day-care centers, nursing homes, Section 8 public housing, and similar companies. During the recent national meeting of LeadingAge in Nashville, one topic was an "alarming trend" in the growth of the for-profit long-term care sector. As reported in McKnight's, during the conference LeadingAge Chairman David Gehm warned the audience that the for-profit sector is "growing nearly eight times as fast as the nonprofoit sector ... citing figures from investment bank Ziegler." Gehm is reported as pointing to reduced access to affordable capital as as one factor contributing to the pressures on the nonprofit industry. He argued a "vibrant nonprofit long-term care sector benefits the whole country."
On the consumer-cost side of the equation, it does seem that what was once a price differential between the two sectors for cost of care is narrowing. Nonetheless, historically there has been a certain additional trustw0rthiness factor associated with monprofit providers that often gave them an edge in the marketplace. But is that still true?
As my students in my Nonprofit Organizations class come to realize, there is often a difference between "charitable" care and "nonprofit" care. But is the difference between nonprofit care and for-profit care becoming harder to evaluate?
Last year we wrote about Stanford University's first Design Challenge and the winner's colorful "EatWell" table setting, deigned to help those with cognitive deficits to eat without assistance. Last year the competition attracted 52 teams from 15 countries.
Stanford's Center on Longevity recently announced its 2014-15 Design Challenge, focusing on mobility issues for older adults. Entries are due December 5. One goal is to reach more students, encouraging greater awareness of aging issues and the values of intergenerational collaboration.
Hat tip to my colleague Professor Laurel Terry, who shared the latest news from her son's university.
Tuesday, October 28, 2014
Those of you watching the planning of the 2015 White House Conference on Aging will be interested in the most recent blog post from WHCOA executive director, Nora Super. Director Super mentions in her blog post that some “common threads” are emerging from her community conversations. Those threads include retirement security, healthy aging, community supports and services, and preventing abuse, neglect and exploitation. “These four issues will provide the focus areas for the 2015 White House Conference on Aging. They are intended to support the dignity, independence, and quality of life of older Americans at a time when we’re seeing a huge surge in the number of older adults.” The entire post can be read here.
As anyone knows who has faced a diagnosis of Alzheimer's or other dementia in their own family, it can be devastating news. I remember asking the doctor whether there was some "behavioral" training or program -- in addition to or as a substitute for medication -- that might help my own family member preserve, if not improve, existing cognition. The answer at that time was a slow, sad shake of the doctor's head.
That response is why many will be pleased to hear that the Alzheimer's Association supports research into non-drug therapies. The latest grant funding for four projects, announced in Chicago last week, includes:
- A study of the use of "exercise or cognitive stimulation, or a combination of the two, for lowering the risk of cognitive decline and dementia in older adults." $247k to Dr. Amy Jack at the University of California, San Diego.
- Evaluation of the impact of aerobic interval training regimens on the brain and thinking abilities of people with type 2 diabetes. $250k to Dr. Gail Musen at Joslin Diabetes Center in Boston.
- A study of "Skill-Building Through Task-Oriented Motor Practice (STOMP) for improving daily life skills and delaying decline in people" with dementia. "STOMP utilizes repetitive therapy and a learning technique that focuses on immediate correct steps instead of trial-and-error to strengthen and preserve memory for completing daily living tasks." $100k to Dr. Carrie Ciro at University of Oklahoma Health Sciences.
For more information on Alzheimer's Association research and results, see here and here. I can say that that I'm glad to see studies of regular movement or exercise. In my own family, I saw some stabilization of cognition coincide with greater activity. Being on one level -- with easy access to the outdoors and lots of room and safe areas to walk -- has proven to be very helpful for my father.
The ABA Journal online posted a story on October 22, 2014 As fewer law grads become lawyers, the profession shows its age. Perhaps not such a surprise to those of us in Elder Law World, but the legal profession is aging, just like everything else, but maybe not for the reasons we think:
In 1980, 36 percent of the nation’s licensed lawyers were under age 35, compared to just 13 percent in this age group in 2005. The figures come from The Lawyer Statistical Report, which is based on data from Martindale-Hubbell and compiled by the American Bar Foundation. Meanwhile, the median lawyer age also increased from 39 in 1980 to 49 in 2005.
The article discusses the reasons for the shrinking of the number of younger lawyers. Quoting IU Law professor William Henderson, it's "possible the decline in younger lawyers is because women, who are going to law school in increasing numbers, are more likely to drop out of the profession to raise children.." but "this is only a partial explanation, since the woman lawyers would likely be dropping out of the profession both before and after age 35. But the percentage of lawyers aged 35 to 64 is increasing." Henderson goes on to suggest that "[t]he most likely explanation ... is that the rate of absorption of law grads into the licensed bar is steadily declining over time."
Although not the focus of the article, perhaps as well as fewer younger attorneys entering into the "typical" practice of law, maybe the more experienced lawyers are practicing far more years than in the past. But that's a post for another day.
The Annual Meeting of the Gerontological Society of America (GSA) will take place on November 5-9 in Washington D.C., bringing together more than 4,000 researchers in an interdisciplinary setting to examine cutting edge issues in science, health care, social care, and governance, including related legal issues. The conference draws many from around the world, including my friend Roger O'Sullivan from the Centre for Ageing Research and Development in Ireland (CARDI). There are more than 400 sessions to choose from!
By the way, GSA has a very useful Facebook page, chock full of links to latest research and scientific developments.