Wednesday, February 4, 2015

Part 2 of "Death of a Black Nursing Home" - Medicaid's Racism

Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care.  In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:

"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.

Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.

Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”

The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure.  The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:

"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.

One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.

Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.

But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."

The full articles are interesting -- we will link to any future parts of this bold series.

February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

New Series Examines Impact on Minorities of "Flawed Scheme" for Funding Long-Term Care (Part 1)

This Blog has followed the complicated recent history of bankrupt Lemington Home for the Aged, in Pittsburgh, with posts here and hereNew America Media, a national association of over 3000 ethnic media organizations, has begun an important, multi-part series examining the "impoverished history of race" in long-term care for persons of color.  The Lemington Home becomes a case study.  The series is titled The Death of a Black Nursing Home.

"[W]hat happened to Lemington is not uncommon. Researchers at Brown University found that more than 600 other nursing homes in African American, Hispanic and low-income neighborhoods also went bankrupt during this period.

Their study examined the closings of more than 1,700 independent nursing homes between 1999-2009 and found that those located in largely ethnic and low-income communities were more likely to have been closed, mostly because of financial difficulties.

Specifically, nursing homes in the zip codes with the highest percentage of blacks and Latinos were more than one-third more likely to be closed, and the risk of closure in zip codes with the highest level of poverty was more than double that of those in zip codes with the lowest poverty rate."

Observing that "Medicaid homes can't compete" successfully, the article examines reimbursement rates under Medicare and Medicaid and the disproportionate effect of underfunding on minority communities. 

"The principal authors of the study, Vincent Mor and Zhanlian Feng, both of Brown at the time (Feng is now at the Research Triangle Institute), noted 'closures were more likely to occur among facilities in states providing lower Medicaid nursing home reimbursement rates.' That left these homes without the resources they needed to compete successfully in an industry experiencing an oversupply of beds and intensified competition....

 

While Medicaid reimbursement rates vary by state, they are always below Medicare’s reimbursement levels or the fees charged to people who pay for their own care.  The demise of Lemington and other nursing homes in minority and low-income neighborhoods is a direct result of this flawed payment scheme. However, large for-profit nursing home chains, some of which are owned by private equity companies and real estate investment trusts, can maximize profits by using expensive and aggressive marketing practices to cherry pick the wealthier residents in a given area while reducing the number of their own Medicaid clients.

Medicaid’s payment structure also has impacted the quality of care in nursing homes with predominantly minority residents."

We will link to the next parts of the series as they become available.

February 3, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

2,000 Veterans Wait In Line to Get Nursing Home Care In Missouri

From WGEM.com in Hannibal, Missouri, coverage on "2,000 Veterans Waiting in Line to Get Into Missouri Nursing Homes,"

"Some wait more than a year to get full care covered through veteran's benefits, and it's even harder for veterans without a state home close to where they live because they have even fewer options.

 

'I had to have a place to go, so they got me in,'  Army veteran Robert Johnson said. Johnson is at Beth Haven Nursing Home in Hannibal for the time being. He had to choose a private care facility because there are relatively no veteran's homes in the area. 'Oh yeah, it's pretty expensive to stay here,' Johnson said. 'I think they ought to have something to help veterans out. A lot of people have a pretty hard time anymore.'

 

Veterans who pay for private care do get supplemental money through benefits, and those using Medicaid also get personal allowance, but sometimes it's not enough. Beth Haven CEO Paul Ewert says there are some cases where families have to either pay out of pocket or travel hours away for full care."

February 3, 2015 in Health Care/Long Term Care, Housing, Veterans | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Supported Decision-Making: A Model Alternative to Guardianship?

A recent blog post on the Administration for Community Living (ACL)  discusses supported decision-making. Preserving the Right to Self-determination: Supported Decision-Making discusses the limitations of guardianships for decision-making by those individuals with dementia, intellectual or developmental disabilities and explains why supported decision-making may be a better choice.

Supported decision-making starts with the assumption that people with intellectual and developmental disabilities and older adults with cognitive impairment should retain choice and control over all the decisions in their lives. It is not a program. Rather, it is a process of working with the person to identify where help is needed and devising an approach for providing that help. Different people need help with different types of decisions. For some, it might be financial or health care decisions. Others may need help with decisions surrounding reproductive rights or voting. Some may need help with many types of decisions, while others need help with only one or two. 

The solutions also are different for each person. Some people need one-on-one support and discussion about the issue at hand. For others, a team approach works best. Some people may benefit from situations being explained pictorially. With Supported decision-making the possibilities are endless.

The blog goes on to explain "a cooperative agreement" with Quality Trust for Individuals with Disabilities where they will 

build a national training, technical assistance, and resource center to explore and develop supported decision-making as an alternative to guardianship. The resource center will gather and disseminate data on the various ways in which supported decision-making is being implemented and generate research in the area. Our goal is that the information collected during the period of this cooperative agreement will lead to a model that will help states as they consider alternatives to guardianship.

February 2, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)

Stanford Study on Facial Recognition and the Brain

I suspect that every law professor has had the experience of running into an individual -- perhaps in an airport -- who enthusiastically exclaims, "Professor So and So, do you remember me!?"  Near the end of my class of 1L Contract students, I now even suggest to students that when this happens, they could help me out, by saying "Professor Pearson, I was in your 2012 class of Contracts -- Remember me!?"  Thus, allowing me to at least pretend....

However, the science of  facial recognition --  and perhaps memory as well --  is gaining deeper understanding with the help of a Stanford University study. A recent Stanford Report article explains the work of Stanford neuroscientists studying prosopagnosia, or facial blindness. Here is an excerpt:

Recognizing the faces of family and friends seems vital to social interaction. However, some individuals lack this essential skill. Those with a condition called face blindness, or prosopagnosia, can see eyes, lips and other facial features, yet they cannot remember the whole picture, a face. The condition touches one in 50 people, including actor Brad Pitt, neurologist Oliver Sacks, and primatologist  Jane Goodall....

 

The brain's regions for face recognition and place recognition are located near to each other, under and behind the ears. For people with normal face and place recognition, the brain's wiring for each region is correlated with how good they are at face or place recognition, respectively. But in adults with face blindness, only the wiring of the face-recognition region is different from typical adults, and is coupled with their recognition deficit....

 

The brain's face- and place-recognition regions comprise grey-colored nerve cells. Extensions of those cells, or axons, range like wiring to other cells and regions of the brain to enable communication. Though face recognition is centered in particular regions of the brain, their complex function integrates perceptions such as depth, movement, shape and color, which take place in several parts of the brain. Those parts communicate with one another through axons. Thicker axons and more axons speed communication.

 

Each axon is sheathed with an outer layer of a white substance called myelin, similar in appearance to the way an electrical wire may be coated with an outer layer of insulation. Myelin gives the axons a white appearance, and so the axons with their sheaths are called white matter. The more myelin there is, the faster the communication. Myelin abnormalities distort or interrupt nerve impulses, as is seen in multiple sclerosis, a condition characterized by scarring of the myelin sheath. And myelin health might play a role in the development of Alzheimer's disease."

Hat tip to Stanford "mom" Laurel Terry for sharing this item.

February 2, 2015 in Cognitive Impairment, Science | Permalink | Comments (0) | TrackBack (0)

Sunday, February 1, 2015

"Insider" Greg O'Brien Continues His Story on Alzheimer's on NPR

Part 2 of Greg O'Brien's NPR report on his personal journey with Alzheimer's is now available.  He has a remarkable way of capturing the process with words -- a bit of irony:

"A diagnosis of Alzheimer's disease, says Greg O'Brien, doesn't mean your life is instantly over. 'There is this stereotype that ... you're in a nursing home and you're getting ready to die,' he told NPR. 'That's not true.'

 

'It's like a plug in a loose socket,' he says. 'Think of yourself, wherever you are in the country, and you're sitting down and you want to read a good book, and you're in a nice sofa chair next to a lamp at night. And the lamp starts to blink. You push the plug in and it blinks again and you push the plug in. ... Well, pretty soon you can't put the plug back in again because it's so loose, it won't stay there. And the lights go out forever.'"

February 1, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

Saturday, January 31, 2015

And Now, Some Happier News About Nursing Homes...

It strikes me that a lot of my posts this week about long-term care have been "bad news," especially regarding nursing homes.  It is a good time for me to share a much happier view from a daughter who first wrote to me about her fears as an adult daughter -- with health care concerns of her own -- living 3,000 miles away from her father, who at 90+ was in crisis and needed daily help, but was unable to afford it. Loving Daughter and Dad 

Her dad had a local person as an agent, a long-time friend's child who held "power of attorney." But that individual seemed overwhelmed.  When the daughter wrote to me, I encouraged her to talk to her father, who still had capacity.  Four months later, the daughter wrote back to give the results, including the very good news that her father was happier. She gave me permission to share details here:

"Since last September ... I was able to get my father completely on Medicaid and everything went through well with his application, etc.  He got accepted the first time!  I hear that can be rare. Additionally, my Dad met with his attorney and revised his POA, making me his agent and allowing me to do many things, even from afar.

 

Dad's very happy now and quite healthy (at age 91) in his new skilled nursing home environment in Pennsylvania.  Even from 3,000 miles away, I am still very connected to him, as well as the wonderful staff at the nursing home.  My Dad is now 3rd generation of his family to stay at that same nursing home. Additionally, he now has the company of his youngest sister, my Aunt, who has been at the home for the last 10 years.  They are together and enjoying each other's company every day."

A short time later, the daughter wrote again:

"I have such peace of mind, and heart, knowing this is the right place for Dad, plus, he has so much more socialization now and is no long isolated and all alone in his apartment where he was before.  (I no longer lay awake every night worried about him with knots in my stomach.) Plus, I forgot to mention the facility has a resident dog on site, a golden retriever named 'Magoo,' and, boy, does he brighten everyone's day."

This daughter's words are an important reminder that the "right" place, including the right nursing home, can make dramatic improvement in the lives of older persons, especially where frailty and isolation are the concerns. Thank you, Patti, for sharing your "happier" news.

Postscript:  Patti allowed us to share a photo of her and her father, and the story of their relationship is written in their smiles. 

January 31, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicaid | Permalink | Comments (0) | TrackBack (0)

"Still Alice" As Springboard For Family Conversation

My colleague and great friend, Professor Laurel Terry, shared Paul Sullivan's Wealth Matters column from the New York Times, that uses the new movie Still Alice as a reminder of the importance of family conversation:

"For anyone who has ever watched a family member disappear into Alzheimer’s, Ms. Moore’s performance is gripping, particularly as her tricks to stall her decline inevitably fail and the later stages of the disease consume her. Yet the movie is also a great vessel to explore many of the financial issues that families need to address when someone is diagnosed with Alzheimer’s or any other disease that causes cognitive impairment."

The column continues with thoughts from financial professionals, who sometimes observe the early signs of a long-time client's decline:

"Thomas Mingone, managing partner at Capital Management Group of New York, said he had clients whose mental slide had been apparent to the advisers, accountants and lawyers in the room but not to the client. Since advisers are bound by a fiduciary duty to protect their clients’ privacy, Mr. Mingone said he can’t simply call up their children to let them know. With a client who seems to be slipping but lives alone and sees family members infrequently, Mr. Mingone said he suggests a family meeting, which allows him to connect with his client’s children. Other times, he said, just asking clients how they are doing brings the problem out.

 

'Sometimes when you bring this up with clients, it’s a relief to them,' he said."

For additional realities, including the problem of end-of-life decision-making and care choices, read "In Alzheimer's Cases, Financial Ruin and Abuse Are Always Lurking." 

January 31, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Film | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Additional Discussion of Use of Guardianships as Nursing Home Collection Tool

On Monday, we linked to the front-page New York Times article by Nina Bernstein, "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."  Suffice it to say, I've been hearing a lot about the topic, from many sources.  In hearing from law professors and lawyers with different perspectives, it appears there are at least three important questions framed by the article. Each may take additional investigation to fully address, whether in New York or other states where similar concerns have been raised.

In one of the cases described by the NYT, a court opinion addresses what appears to be the nursing home's narrow "collection" purpose in seeking a guardianship.  The article summarizes:

"Last year Justice [Alexander W.] Hunter did appoint a guardian in response to a petition by Hebrew Home for the Aged at Riverdale, but in his scathing 11-page decision, he directed the guardian to investigate and to consider referring the case for criminal prosecution of financial exploitation.

 

The decision describes a 94-year-old resident with a bank balance of $240,000 who had been unable to go home after rehabilitative treatment because of a fire in her co-op apartment; her only regular visitors were real estate agents who wanted her to sell. After Hebrew Home’s own doctor evaluated her as incapable of making financial decisions, the decision says, the nursing home collected a $50,000 check from her; it sued her when she refused to continue writing checks, then filed for guardianship. 'It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties — parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid,'  he wrote.

 

Jennifer Cona, a lawyer for the nursing home, called the decision 'grossly unfair to Hebrew Home,'  but said she could not discuss details because the record was sealed."

Here is a link to the full opinion in the case, publically available on Justia.com.  

Two additional cases raise similar issues and are referenced in the New York Times.  Both have opinions by  Judge Hunter:

Matter of G. S., 17 Misc.3d 303; 841 N.Y.S. 2d 428 (Sup. Ct., New York County 2007), and

Matter of S.K., 13 Misc.3d 1045; 827 N.Y.S.2d 554 (Sup. Ct. Bronx Cty., 2006).

In both cases, Judge Hunter concluded the purpose for which the guardianship petitions were filed by the nursing home as petitioner was "not the legislature’s intended purpose when Article 81 of the Mental Health Law was enacted in 1993.” In each case, the judge assessed fees against the petitioner nursing home. In the 2007 case of G.S., the court observed, "To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate."

Continue reading

January 29, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Third Circuit: Officers & Directors of Bankrupt Nursing Home Liable for "Deepening Insolvency" But Punitive Damages Not Proven re Directors

We reported in December 2013 about the long saga of the Lemington Home for the Aged, a troubled nursing home that sought bankruptcy court protection in 2010.  Lemington Home for Aged Now, in a 2015 decision by the Third Circuit Court of Appeals, following an appeal from the March 2013 jury verdict that awarded the Home's unsecured creditors a total of $5.75 million, key issues about that damage award are addressed.

Judge Vanaskie, who had taken the lead on an earlier appellate opinion regarding the officers and directors, provided some relief for the five former directors on the nonprofit organization's board, who faced joint and several liability for more than $3.5 million in punitive damages.  The opinion begins with a concise summary of the outcome:

"This lawsuit, which concerns the mismanagement of a Pittsburgh-area nursing home and its ensuing bankruptcy, comes before the Court for a third time on appeal. In the present appeal, the Defendants, two former Officers and fourteen former Directors of the nursing home, present several challenges to the jury's verdict, which found them liable for breach of fiduciary duties and deepening insolvency. The jury also imposed punitive damages against the two Officers and five of the Directors.

 

We will affirm the jury's liability findings and the punitive damages award imposed against the Administrator and the Chief Financial Officer of the nursing home. We will, however, vacate the jury's award of punitive damages against the Defendants who served on the nursing home's Board of Directors. We conclude that the punitive damages award against those Defendants was not supported by evidence sufficient to establish that they acted with 'malice, vindictiveness and a wholly wanton disregard of the rights of others .' Smith v. Renaut, 387 Pa. Super. 299, 564 A.2d 188, 193 (Pa. Super. Ct. 1989) (citations omitted)."

The full opinion, filed on January 26, 2015 for In re Lemington Home for the Aged, is well worth reading, especially for the additional analysis of how individual officers and directors of a corporation (even a nonprofit corporation), can face personal liability for contributing to  "deepening insolvency," a form of "fraudulent expansion of corporate debt."  At the same time, the opinion analyzes the active misconduct of the CEO and CFO of the company that supported the award of punitive damages, as opposed to the absence of proof of  "outrageous or malicious conduct" that precluded the directors' liability for same.

January 29, 2015 in Current Affairs, Ethical Issues, Federal Cases, Health Care/Long Term Care, Retirement | Permalink | Comments (0) | TrackBack (0)

ABA Commission Fellow Examines Restoration of Rights for Adults Under Guardianship

Jenica Cassidy, a recent graduate of Wake Forest University School of Law, has been serving as a Fellow with the ABA Commission on Law and Aging since August 2014.  It appears she's been making very good use of her time, working on a study that examines termination of guardianships and restoration of rights for adults. 

BiFocal, the journal of the ABA Commission is publishing a short overview of the study -- a sneak peek -- in its February issue. What I especially appreciate is the clear documentation provided by the author on the methodology, including "(1) statutory review; (2) case law search and analysis; (3) online questionnaires for attorneys and judges; and (4) stakeholder interviews." Jenica and the Commission staff analyzed 104 cases, including 57 cases occurring between 1984 and 2014, where individuals petitioned for restoration of rights.  The study highlights the challenges that face any individual seeking to terminate a guardianship, as well as the impact of guardian testimony or opposition to such petitions. 

The full report will be published in the Elder Law Journal (University of Illinois), but in the meantime, read the intriguing summary available through BiFocal.  

January 29, 2015 in Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 28, 2015

Should the Senior Housing Market Segment Known as "CCRC" Change Its Name?

LeadingAge, an senior housing and senior care organization that often takes a prominent advocacy role on behalf of nonprofit Continuing Care Retirement Communities, has a "NameStorm Survey" underway.  The survey explores whether another name (and presumably an acronym other than CCRC) would better "resonate with consumers?" Everyone is invited to weigh-in, including current residents at CCRCs.

Here's the link to the reasons for the brainstorming of names, and here is a link to the on-line survey, that  takes just a few minutes.  The survey window closes on February 15, 2015.

January 28, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Congressional Leaders Seek Answers on Enforcement of Medicaid Asset Transfer Rules

Republican chairs of the House Committee on Energy and Commerce and the Senate Finance Committee recently wrote to the head of Center for Medicare and Medicaid Services (CMS), demanding explanation for why 22 states and D,C. are "failing" to implement federal laws about Medicaid eligibility and asset transfer rules for Long Term Services and Supports (LTSS) benefits.   They write:

"We are troubled to learn that many states have not implemented all of the eligibility and asset transfer requirements enacted by OBRA and DRA.  Information provided to us by the Department of Health and Human Services' Office of Inspector General (OIG) shows that, as of November 2013, only 28 states reported they implemented all of the relevant provisions from these two laws.  Thus, although it has been over 20 years since enactment of OBRA and nearly 10 years since DRA, the remaining 22 states and the District of Columbia have yet to comply with federal law.  California, which accounts for 12 percent of Medicaid LTSS spending, reported that it has not implemented the majority of the relevant provisions.  As a result, federal Medicaid dollars may be paying for care for individuals who are not eligible for coverage under federal law, which puts a strain on resources for those individuals who are eligible and in need."

The Chairmen ask for answers to a list of questions (by February 27), focusing on what action CMS is taking or will take to bring states "into compliance." For example, they ask "How is CMS ensuring that federal Medicaid dollars are not being used to support coverage for individuals ineligible for LTSS under federal law?"

Here is the legislators' full letter, addressed to Marilyn Tavenner at CMS, dated January 23, 2015.

For another perspective on potential disparities among the states in administering Medicaid eligibility rules for LTSS, see AARP's Public Policy Institute Report on "Access to Long-Term Services and Supports: A 50-State Survey of Medicaid Financial Eligibility Standards" released in September 2010. 

This letter presents an interesting juxtaposition with the Armstrong case now pending in the Supreme Court.  On the one hand, federal and state governments are arguing in court that there is no private standing to challenge "underfunding" of federally mandated Medicaid programs; on the other hand Congress seems to be demanding that CMS stop any potential for overfunding Medicaid beneficiaries.  

January 27, 2015 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

The Importance of Checks & Balances in Law Firm Management, Including Handling Of Elder Client Funds

A news release from the U.S. Attorney's Office in Western Virginia provides an important reminder of the importance for every lawyer of having a system of checks and balances for law office management, to prevent any single employee from having unsupervised access or exclusive control over client trust funds.  On December 15, 2014, a 34-year-old legal assistant at a law firm in Virginia was sentenced to 24 months in federal prison for stealing more than $183k from an elderly client of the law firm.  The lawyer who employed that assistant had been named by the county to serve as the conservator for the elderly woman who became the victim.  According to the news release, the attorney "allowed [the legal assistant] to access the elderly woman's bank accounts,...but [the assistant] did not have signature authority on the accounts."

According to the news release, the employer "to date... has repaid $104,990.15." One suspects the law firm (or, its insurer) will have to pay the whole tab, even though the sentencing order imposes an obligation of restitution for the full sum on the legal assistant. 

January 27, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

NYT: Nursing Homes Seek Guardianships (And Fees) To Collect Unpaid Nursing Home Costs

In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities.  The trigger? Unpaid nursing home fees.  

Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."  

NYT  and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:

"Few people are aware that a nursing home can take such a step.  Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality.  But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

 

In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes.  Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage.  But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."

While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.

New York is not alone in seeing guardianship cases initiated by nursing homes.  In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.

For more, read "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."

January 26, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Justice in Aging: New Name plus Long-Standing Commitment

National Senior Citizens Law Center, an important advocate for low income seniors in the U.S. since its inception in 1972, has announced a new identity, "Justice in Aging." But, don't worry, this change represents a deepening of their long-standing commitment (including a cherished role in training and education of senior advocates, including free webinars). As explained in news releases:

"The new name and accompanying 'look' will more accurately reflect the nature of our work, build on our legacy of impact, and open the door to engage more supporters and partners across the country.  And it is a LOT easier to say and remember!

 

Our new name will be Justice in Aging.  Our new tagline will be Fighting Senior Poverty Through Law.... Our new website will be www.justiceinaging.orgWe will begin using the new name on March 2, 2015.... While our name is changing, our work will remain the same.  As income inequality increases across the nation and the population ages, senior poverty is growing to unprecedented levels.... We still serve serve as a resource for advocates on important programs like Medicare, Medicaid, LTSS, Social Security and SSI." 

We wish the hardworking staff of NSCLC -- or now JiA, perhaps? -- all the best as they roll out their new identity, and in their continuing commitment to advocating for seniors across the nation. 

January 26, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0) | TrackBack (0)

Sunday, January 25, 2015

Proposed Regs from the VA

The Federal Register on January 23, 2015 included a proposed rule from the VA on Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits.  Here is an excerpt from the executive summary

This proposed rulemaking would amend regulations governing VA's needs-based pension programs to promote consistency in benefit decisions, reduce opportunities for attorneys and financial advisors to take advantage of pension claimants, and preserve the integrity of the pension program. The revised regulations would promote consistent decisions by establishing a bright-line net worth limit and re-defining net worth as the sum of assets and annual income. The revised regulations would also promote consistent decisions by defining in regulations those unreimbursed medical expenses that VA will deduct from a claimant's annual income for purposes of determining a claimant's annual pension payment.

By establishing in regulations a look-back and penalty period for claimants who transfer assets before applying for pension to create the appearance of economic need where it does not exist, the revised rules would reduce opportunities for financial advisors to provide advice for the restructuring of assets that, in many cases, renders the claimant ineligible for other needs-based benefits. Establishing a look-backand penalty period for pre-application transfers of assets would also preserve the integrity of the pension program by ensuring that VA only pays the benefit to those with genuine need.

Comments are due by March 24, 2015.

January 25, 2015 in Health Care/Long Term Care, Veterans | Permalink | Comments (0) | TrackBack (0)

How Do You Tell Family You Have Alzheimer's?

NPR's All Things Considered began a series on January 24th that follows Greg O'Brien's journey with early-onset Alzheimer's, beginning with his diagnosis at age 59.  There is lots of important stuff here, including the need for family dialogue and understanding.  One dialogue is between the father and son, about why it was important for the son to serve as his  dad's agent under a Power of Attorney. 

Here's an excerpt from O'Brien's powerful account:

"How do you tell your kids that you got Alzheimer's? It sucks.

 

I had planned this family meeting, so all the kids were home and we're going to go out to dinner. I knew I had to talk beforehand.So I'm in the bathroom, you know I felt a little bit like Luca Brasi in The Godfather, practicing my speech. 'On the day of your daughter's wedding....'

 

I could hear, 'Daddy,where are you?' So I came out and I went over the fact that their great-grandfather, my grandfather, had died of Alzheimer's and my mother, which they knew. And now it's come for me...."

To read or listen to the series on public radio or podcast, follow the NPR links here.  O'Brien also has a book, On Pluto - Inside the Mind of Alzheimer's.

January 25, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Saturday, January 24, 2015

From the Cover of Rolling Stone to...

Bob Dylan goes from the cover of Rolling Stone magazine ... Cover of Rolling Stone with Bob Dylanto the cover of AARP Magazine....  AARP Magazine Cover with Bob DylanMore signs that the times they are a changin' for elder boomers! 

January 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Oregon's Law That Mandates "Elder Abuse Reporting" by Lawyers Now in Effect

As outlined in the Bar Counsel column of the January issue of the Oregon State Bar Bulletin, on January 1, 2015, lawyers became mandated reporters of suspected elder abuse, including physical abuse, neglect, verbal abuse, sexual abuse, and financial exploitation.  Deputy General Counsel Amber Hollister for the Oregon State Bar explains:

"Lawyers across Oregon are talking about elder abuse reporting.  On Jan. 1, 2015, legislation took effect making all Oregon lawyers mandatory reporters of elder abuse.  HB 2205 (2013).  As with any new law, there are still many questions about how the new requirements will apply and impact lawyers' day-to-day practice....

 

The new reporting requirement was enacted at the recommendation of the Oregon Elder Abuse Prevention Work Group, which was tasked with studying how to better protect older Oregonians.  As state Rep. Val Hoyle notes, 'for four years, the work group has focused on protecting some of Oregon's most vulnerable citizens.  Integrating lawyers into Oregon's elder abuse safety net as mandatory reporters will provide our state with 19,000 additional advocates.'"

January 23, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)