“Let it be clear that every one of these allegations are products of the increased confusion and memory loss that Dad has demonstrated in recent years,” Andy and Jan Aldrin said.
Their father had started associating with a few people who were “trying to drive a wedge between Dad and the family,” Andy Aldrin said. The siblings said they would not allow “opportunistic agents to grab the spotlight, break our family apart.”
They said they were also concerned about his increasingly lavish lifestyle, which grew to more than $70,000 a month at a time when he stopped accepting paid speaking engagements. His annual salary from the foundation was $36,000.
Thursday, August 16, 2018
On June 5, 2018, a Michigan Appellate Court issued an order demonstrating the tension between two concerns, respect for autonomy and a goal of protection, that can arise when a court is asked to determine who will be appointed a guardian or conservator. The case strikes me as a good vehicle for classroom discussion.
The appellate court concludes that the trial court abused its discretion by appointing a professional fiduciary, in lieu of the alleged incapacitated person's adult daughter, where there was a failure to make specific findings to explain why the state law''s "order of priority and preference" was not followed. The opinion for In re Guardianship of Gerstier notes:
While the probate court's focus on [the father's] welfare is commendable, the court missed a critical step in the analysis. When Milbocker [a private, professional guardian] resigned as [the father's] guardian and conservator, [the daughter] petitioned to be appointed to fill those roles. At that juncture, the probate court was required to reconsult the statutory framework before appointing another public administrator. The court never articulated any findings regarding [the daughter's] competence and suitability to serve. Absent those findings, the court erred by appointing [a new professional guardian].
The history recounted by the appellate court suggests that the man's daughter, living in Texas, and the man's sisters, living in Michigan, were both seeking control over the father's estate, with the sister making allegations that the daughter's personal and financial history made her an inappropriate choice. The daughter made counter allegations about the sister's motives and behavior. In addition, the father had signed conflicting POAs. In 2013 and again in 2015, the father identified the daughter in two powers of attorney as his preferred agent; however, in 2016, after being diagnosed with Alzheimer's disease and after his wife died, the father began living in Michigan with his sister, where he signed a new POA designating that sister as the agent.
Michigan law grants priority to "a person nominated as guardian in a durable power of attorney or other writing." Further, in the absence of an effectively designated individual, the statute provides an ordered list of preferences, beginning with the spouse and next with "an adult child of the legally incapacitated adult."
The Michigan appellate remanded the case to the trial court with directions to reconsider the appointment of a new guardian and conservator and to make "specific findings of fact" regarding the daughter's "competence, suitability and willingness" to serve. Further, the court directed that if the sister provided evidence during the remand, the court must "weight her credibility carefully in light of incorrect information she provided in her initial petition...."
Reading between the lines of the court history here, one can see how the trial court decided to go with a professional guardian, probably seeing appointment of a "neutral" professional as the safer option where money seemed to be the main focus of the control issues. (The father seemed to be comfortable traveling between his daughter in Texas and his sisters in Michigan.) State guardianship/conservatorship laws that have adopted lists of preferred individuals, however, require additional steps to explain why party autonomy will not be respected, or why the state's preference list will not control. Such laws significantly alter the discretion once accorded to the court under many state's older appointment laws. Will more careful adherence to the laws change the result in this case on remand? For the classroom exercise, ask students what they predict will be the trial court's next ruling.
Monday, August 13, 2018
I'm a fan of WITF-Radio's Smart Talk program even though it often "interferes" with my work day, as I linger to catch the entire broadcast. I'm such a fan that even when I'm out of town, I'll often listen to the program via live streaming or podcasts -- and when I'm the western part of the U.S. I can listen live without feeling guilty because of the time difference (3 hours in the summer ). One of the recent broadcasts had me listening twice.
The program began with a report on pending legislation in Pennsylvania, that could mandate lower patient-to-nurse ratios in hospitals. During the current legislative session, the two key items are House Bill 1500 and Senate Bill 214. A coalition of Pennsylvania nurses hand-carried a petition with 10,000 signatures to the Capitol demanding support for better staffing at hospitals. On the radio program the speakers -- all nurses -- agreed about the need for adequate coverage, but disagreed about whether mandated ratios were the right solution. Not surprising is opposition to mandated ratios coming from the hospital industry representatives; however the Pennsylvania State Nurses Association also resists mandatory ratios, arguing such ratios are "not flexible enough." HB 1500 would call for different ratios according to the type of unit, such as ratio of one nurse for every two patients in the neo-natal intensive care unit, with a higher ratio of 1 to 4 permitted in a pre-surgical unit.
The program drew a lot of callers. In fact there were so many callers, host Scott LaMar deferred plans for a different topic for the second half of the hour-long program in order to continue the staffing discussion. What I found particularly interesting was that many of the callers wanted to talk about staffing ratios in rehab facilities and nursing homes, not "just" hospitals, and part of the conversation was about whether the key ratios should consider all care staff and not focus solely on registered nurses. Here is the link to the podcast:
The calls reminded me of one terrifying, long night in a hospital with a relative after she had emergency surgery. She was "allowed" to use the toilet in the bathroom, rather than a bed pan, but because she wanted to go frequently, the night time staff began insisting she use a bedpan, so that they wouldn't have to attend her in the bathroom. The staff was hostile to my efforts to help (and in fact, I didn't have a clue as how best to help), but also would have left their patient perched uncomfortably on the bed pan for a half hour or more if I hadn't intervened. She began refusing to use her call button, insisting I help her to the bathroom, even though she was still attached to various lines and monitors. It was a catch-22 situation for me as a family member -- and also for the overworked staff. I remember my one firm conviction that night was that without a family member with her, we would have been adding broken bones to the list of woes for my loved one because of the staffing issues.
Sunday, August 12, 2018
Register now for this DOJ Elder Justice Initiative webinar Digging Deeper: When Consent is Not Consent.The webinar is scheduled for September 6, 2018 at 2 p.m. edt. Here's a description of the webinar:
Jane Walsh, Director of At-Risk Protection, Denver District Attorney’s Office, will discuss the concept of consent, which underlies a range of actions in criminal and civil law, including gifting money. In the context of financial exploitation, prosecutors and law enforcement will regularly be faced with many situations where a victim is aware that money or assets are being transferred to a suspect, and is apparently consenting to this happening. It is easy for incorrect assumptions to be made about consent, for example, labeling a financial gift as a poor decision rather than the result of fraud or some other action. Learn more about the dynamics of these cases, how capacity factors in, and thoughts on tactics and strategies to consider when building and trying these cases.
The concept of consent underlies a range of actions in criminal and civil law, including gifting money. In the context of financial exploitation, professionals at times make incorrect assumptions about consent, for example, labeling a financial gift as a poor decision rather than the result of fraud or some other action. Increasing the complexity of these cases is the issue of consent. Learn about the elements of consent, how to confirm consent, and how to distinguish consent from actions or conditions (such as diminished capacity) that negate consent.
To register, click here.
While you are at it, also register for the 3rd in a series webinar on Financial Crimes vs. Seniors. This one, Financial Crimes Against Seniors Part 3 - Response, Prosecution, and Prevention
is set for September 19, 2018 at 1 p.m. edt and will cover
A collaborative project of NW3C and the Elder Justice Initiative, this webinar is the third in a series of three webinars based on the NW3C Financial Crimes Against Seniors class, and will include:
- Responding to a Senior Call
- Prosecuting Elder Exploitation
- Promoting Awareness and PreventionClick here to register for this one!
Friday, August 10, 2018
Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial
According to news reports, here and here, three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility. The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father. A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.
A North Dakota's statute, N.D.C.C. Section 14-09-10, with language that can be traced back to filial support laws of Elizabethan England, provides:
It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.
One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance: "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid." The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."
According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law. Such laws have been blocked or repealed in most other U.S. states. North Dakota and my own state, Pennsylvania, are the two most notable exceptions.
My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing.
- First, if the father was in the nursing home for 7 months, who did the children think was paying for his care? I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death).
- What was the basis for any denial for Medicaid? I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt? I'm not aware of any such rule at the federal level.
- Is there another member of the family involved in the application -- someone other than the three target children -- or is there another family member involved in any "transfers" causing an alleged ineligibility period? In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
- Finally, why weren't there care planning meetings with the family that included discussions of costs of care? It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.
Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.
August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, August 8, 2018
The National Center on Law & Elder Rights is offering a free webinar on August 14, 2018 at 2 edt on Legal Skills-Eviction Defense-Helping Older Tenants Remain at Home.
Here's a description of the webinar:
More older adults are choosing to rent, rather than purchase homes. Older tenants are particularly at risk of eviction due to unaffordable rent increases, or retaliation for complaints regarding code violations. Moreover, as adults age, landlords may be reluctant to make reasonable accommodations for tenants with disabilities. Affordable housing is an important option for older renters, as it may offer reduced barriers and helpful amenities, but older adults may face other challenges preserving their tenancies in such housing.
This legal basics webcast will present a general overview of the tenants’ rights, examine one state’s process, and discuss defenses to eviction and other effective strategies to counter displacement.
To register, click here.
Tuesday, August 7, 2018
We have had a number of posts of late regarding medical aid-in-dying, so I was interested in this article in the Washington Post, Assisted suicide is controversial, but palliative sedation is legal and offers peace. The article opens relating one individual's experiences and explains that "[u]nder palliative sedation, a doctor gives a terminally ill patient enough sedatives to induce unconsciousness. The goal is to reduce or eliminate suffering, but in many cases the patient dies without regaining consciousness." The article makes a stark contrast between physician aid-in-dying, which is authorized in a handful of states, compared to "[p]alliative sedation [which] has been administered since the hospice care movement began in the 1960s and is legal everywhere." The article notes that palliative care is not without concerns, mainly moral lconcerns on the part of health care providers, with variations in policies throughout hospitals.
Where is the line between terminal sedation and euthanasia, ponders the article, with positions offered on both sides.
[M]any doctors who use palliative sedation say the bright line that distinguishes palliative sedation from euthanasia is intent. ... "There are people who believe they are the same. I am not one of them,” said Thomas Strouse, a psychiatrist and specialist in palliative-care medicine at the UCLA Medical Center. “The goal of aid-in-dying is to be dead; that is the patient’s goal. The goal in palliative sedation is to manage intractable symptoms, maybe through reduction of consciousness or complete unconsciousness.”
Others, including the National Hospice and Palliative Care Organization, recommend that providers use as little medication as needed to achieve “the minimum level of consciousness reduction necessary” to make symptoms tolerable.
The question often posed is whether terminal sedation will hasten death, and in some cases, no antibiotics, nutrition or hydration are provided and whether death occurs sooner depends in large part on the person's condition. As one expert noted, "in all cases the goal isn’t death but relief from suffering."
When is the use of terminal sedation appropriate? The article discusses its use to relieve "existential suffering" which is defined by "the hospice and palliative-care group ... as 'suffering that arises from a loss or interruption of meaning, purpose, or hope in life.'" In comparing it to aid-in-dying, it may provide an option for those who are not eligible for aid-in-dying assistance. "Whether palliative sedation truly ends suffering is not knowable, although doctors perceive indications that it does."
Tuesday, July 31, 2018
In a recent issue of The New Yorker is staff writer David Owens' detailed account of his mother's entanglement with scammers. It is a tale all too familiar to any of us who have represented families in trying to stop such scams (much less recover money). At each level of law enforcement, he and his sister encounter experienced professionals who were fully familiar with such scams, but who simply weren't eager to pursue an investigation of another such case. You can feel the sense of their hopelessness about such a mission.
David's mother, living in Kansas, was a victim, via internet and telephone calls from a scammer who was working out of a base in California (or beyond). While the son and daughter were able to put an end to some of the scamming behavior by putting holds on financial accounts and taking over the checkbook, they were stunned when their mother avoided this intercept by simply traveling to another branch of the bank and accessing money from the "frozen" account in order to mail it off to her buddy "Sam."
All of this feels especially sad and familiar to me. Not just from the experience with clients we had in our Elder Law Clinic at Dickinson Law, but from my own mother's experience with a predatory former homecare worker. Even though we showed Mom the clear evidence of his particular con game (asking for two or more paychecks each week, calling one an advance, knowing she would not remember any such advance the next week; his pay doubled, then tripled in the course of 6 months), and even though she accepted he had to be discharged because he couldn't or wouldn't stop the con, he still managed to get her to meet him, in her bathrobe at the crack of dawn, in the alley behind her house to hand him more cash. It was another "advance."
In David Owens' story, My Mother and Her Scammer, his aging mother was lonely. So too was my mother; "helping" the conman made her feel like she was important and needed. But in both instances, our mothers' misplaced trust is a sign of reduced executive function in the brain, with the hallmark inability to appreciate risk. Plus, in both instances the conman knows exactly how to play his mark.
My thanks to Karen Miller, Esq., in Florida for sending me this well-written (and frustrating) tale.
Monday, July 30, 2018
On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit.
The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers. The trial judge would allow only $1 million in settlement funds to be placed in trust.
In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:
The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . .
Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.
The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back first, before any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A); I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . . Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.
The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."
July 30, 2018 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, July 25, 2018
A recent reader asked about what happened in the Sears Methodist Retirement System bankruptcy case in Texas for residents who had paid a "refundable" entry fee before the company filed for reorganization under Chapter 11 of the Bankruptcy Code. In addition to sharing some legal documents in a recent update, I promised readers to reach out to contacts to get more of the story. I heard from a long-time correspondent, Jennifer Young. Here is her important story:
I am Jennifer Young. Prior to retirement I worked in Human Resources. I am currently a resident of a CCRC in North Carolina. I moved to North Carolina in 2015 after an unsatisfactory experience in a CCRC in Texas.
Here is what happened to me in Texas. I was a resident of a CCRC, one of the Sears Methodist Retirement Service (SMRS) communities, operated under nonprofit tax rules. There were 5 CCRC operations in the SMRS system, along with 2 subsidized senior housing complexes, an Assisted Living facility, and the management of 3 state veterans’ homes. Eleven communities in all. I managed to move into my CCRC just two years before SMRS filed for protection in bankruptcy court under Chapter 11.
My community was a Type C, 90% refund contract. Our CCRC was brand new, with the entrance fees of those moving in pledged to debt service for the construction loan. SMRS’ decision to break ground on the newest of their CCRCs in 2009 (in the middle of a recession) should have been my first red flag, but I was too wrapped up in the process of choosing a desirable lot and influencing the construction of our future cottage in my own community to think about the long-term implications of that management decision.
As I learned the hard way, the unsecured status of entrance fees meant that residents were “unsecured creditors” in the bankruptcy process; hence, I was advised to apply for a seat on the court’s Unsecured Creditor Committee. I did and served on this committee from the summer of 2014 until it was dissolved in the spring of 2015. Per Bankruptcy Court procedures, these Committees routinely hire a law firm (with fees paid by the bankrupt estate). Residents were lumped in with all of the other unsecured creditors. Meetings were conducted telephonically because committee members were quite scattered geographically. For example, one vendor of therapy services wasn’t headquartered in Texas.
I don’t remember whether the judge issued a formal order about the pre-petition refundable entrance fees, but I know all parties did not want residents to be financially harmed. They were worried about the very negative impact of residents losing their entrance fees, as happened during the 2009 bankruptcy of a Pittsburgh, Pennsylvania CCRC, Covenant of South Hills. A second such outcome, especially for a large, multi-facility community, would have been devastating to the continuing care industry as a whole.
In the Texas bankruptcy process, the court set up an interim manager (not from SMRS) who worked closely with attorneys from all parties in reviewing the offers from potential new owners. As a member of the above-mentioned Committee, I would hear that new owners MUST be willing to accept the current Residency Agreements (contracts). So “applications” to buy were screened in that regard; however, the Committee and the open court procedures did not reveal details regarding all the letters of intent that were submitted. They may have been buried in tons of documents, but I don’t know for sure.
There was an announcement in the fall of 2014 that another Texas non-profit wanted the CCRCs, and all parties seemed content with this prospect. However, that fell through, as this potential new owner’s Board put the kabosh on the deal. To simplify the complexities of the process, let’s just say that for the communities that were not “picked off” during the fall months, there was an auction in January 2015. In contrast, SMRS’ Assisted Living facility was purchased without an auction and its Subsidized Housing facilities went back to HUD.
Monday, July 23, 2018
Hurricane season started June 1 and runs through November. You may recall the tragedy that happened in Florida and the response from Florida requiring SNFs to have generators. So are nursing homes ready for hurricane season in Florida and elsewhere? Bloomberg Law ran this story, Nursing Homes Cautiously Wade Into Hurricane Season.
Nursing homes are reviewing and updating their processes to comply with emergency planning regulations that took effect last November, according to the Washington-based American Health Care Association. Some outside the industry worry, though, that weaknesses still exist—and could put seniors at risk once again. They point to a lack of bite in federal oversight and to limited resources challenging change in institutional care.
One sobering note in the article provided these statistics nationwide: CMS "found more than 1,850 incidents of nursing homes failing to have written emergency evacuation plans between 2011 and 2018, and 3,770 nursing home violations of requirements to inspect power generators weekly and test them monthly...." This data came from "a record review of CMS’s Nursing Home Compare safety deficiency data."
What about Florida? The article notes that Florida is on the right path...but.... "Nursing homes are now “generally much more prepared” for 2018’s hurricane season than they were a year ago, creating plans for emergency power and evacuation ... [and Florida's Agency for Health Care Administration] said the agency would do everything it could to “strictly” hold senior care facilities to the letter of the law, such as fines for noncompliance." Even though the Florida SNFS are following the rules, "just 165 of the 684 providers have implemented a plan and the rest have requested extensions, according to the AHCA’s live tally July 19. Fewer assisted living facilities are in compliance at nearly 73 percent (or 2,260 providers)."
This all sounds good, but if another storm strikes, we may find this isn't enough. One expert in the article pointed out the lack of action at the federal level, offering that "the federal government hasn’t implemented any robust standards changes or safeguards, and there’s “no reason” to believe the same flaws don’t exist this time around...."
The article discusses the issues with lack of resources (isn't that an issue, regardless of hte problem), how there really isn't a one-size-fits-all solution (Oklahoma has tornadoes, but not hurricanes) and the different regulation of SNFs and ALFs.
CMS did act in 2016, unveiling "'all-hazards,' four-pronged approach for nursing home disaster preparation in 2016 that senior care facilities were subject to following the worst of last year’s storms. [CMS required] a facility and community provider risk assessment taking into consideration a provider’s regional susceptibility to different types of emergencies. Providers then had to develop protocols to be reviewed and updated annually for handling potential threats. That extended to the ability to provide care but also equipment and power failures, building or supply loss, and communication flow breaches such as cyberattacks....Nursing homes were also required to develop a communications plan in case of emergency across providers, staff, state and local public health departments, and emergency management agencies, according to the CMS rule (RIN:0938-AO91). And they have to train employees and test and update their emergency plans annually."
Let's hope that we don't have a repeat of those images from last year's storms in Texas and Florida. Advise clients to ask a facility for a copy of their disaster plan and learn about any contracts they have signed with transportation companies to provide evacuation transportation. Also, how does the facility decide whether to evacuate or shelter in place. Cross your fingers-We have 4 months left of hurricane season.
Tuesday, July 17, 2018
McKnight's Senior Living Newsletter editor Lois Bowers wrote an article that alerted me to the June 2018 publication of a new study of unlicensed residential care facilities. From the abstract:
Residential care facilities operating without a state license are known to house vulnerable adults. Such unlicensed care homes (UCHs) commonly operate illegally, making them difficult to investigate. We conducted an exploratory, multimethod qualitative study of UCHs, including 17 subject matter expert interviews and site visits to three states, including a total of 30 stakeholder interviews, to understand UCH operations, services provided, and residents served. Findings indicate that various vulnerable groups reside in UCHs; some UCHs offer unsafe living environments; and some residents are reportedly abused, neglected, and financially exploited. Regulations, policies, and practices that might influence UCH prevalence are discussed.
The study included visiting unlicensed facilities in Georgia, North Carolina and Pennsylvania.
For the full report see Unlicensed Care Homes in the United States: A Clandestine Sector of Long-Term Care, by Michael Lepore, Angela M. Greene, Kristie Porter, Linda Lux, Emily Vreeland, and Catherine Hawes, published in the Journal of Aging and Social Policy.
July 17, 2018 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, July 16, 2018
PA Elder Law Institute Session on CCRCs and LPCs Will Discuss Pending Legislation and Indicators on Financial Performance
As I mentioned earlier, Pennsylvania's annual Elder Law Institute is July 19 and 20 in Harrisburg. On the morning of the first day, I'm on a panel examining new issues in Continuing Care Retirement Communities (and Life Plan Communities), along with Linda Anderson, an elder law attorney, Kimber Latsha, who frequently represents health care and senior living providers including CCRCs, and Dr. David Sarcone, a Dickinson College business professor with background in accounting and health care management.
I'm especially looking forward to the discussion of Pennsylvania 2018 House Bill 2291, introduced in April of this year, but already moving from one committee, to its first of three considerations on the floor, to the Rules Committee, with amendments. In other words, this bill seems to have "legs." The sponsors of the bill are calling it an "Independent Senior Living Facility Privacy Act." As with most catchy titles for pending legislation, the details are a bit more complicated. In this instance the bill's lead sponsor is from a county where a single CCRC was investigated by the State Department of Human Services following a complaint that "staffing levels" were inadequate, leaving certain residents allegedly at risk. The Department of Human Services issued an adverse order in May 2017 related to certain aspects at the facility and apparently that order is the subject of administrative appeals.
The provider contests the order, and in written testimony submitted to the Pennsylvania House Committee on Aging and Older Adults Services, the CEO explained his company's position that the investigators were abusing their authority by entering independent living (IL) units, questioning IL residents, and thus failed to respect the individual autonomy of residents not actually living in "personal care" facilities, facilities that would be subject to HS authority:
"We feel that DHS is inappropriately applying the term 'premises' [from the personal care regulations] as the grounds and building on the same grounds, used for providing personal care services. Each senior apartment is a 'separate individual leasehold,' where an inhabitant, the lessee of the apartment leases an apartment and is afforded the enjoyment and freedom to engage family and third party services."
At the core of this issue is a question about expectations of the public and the residents about care in "independent living" units of a licensed "continuing care community." (Pennsylvania has at least one pending wrongful death suit involving an entirely different CCRC, where one issue is whether the CCRC's alleged awareness of an IL resident's worsening dementia was ignored. She allegedly died of complications of exposure after wandering and being locked out of her IL apartment complex on a cold night.)
The proposed legislation would exclude "independent senior living facilities" (including public housing outside of the CCRC context) from future state Human Services investigations, including investigations by the Long-Term Care Ombudsman.
I expect we will also be talking about financial performance numbers of both for-profit and nonprofit CCRCs -- especially as some of the numbers suggest that some operations both sides of the industry "profit" line may be struggling to "live within their means."
In other words, there will be some especially "hot" topics for discussion.
July 16, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Sunday, July 15, 2018
Over the weekend, a reader asked about the ultimate outcome of a Chapter 11 Bankruptcy reorganization, involving Sears Methodist Retirement System's CCRC properties in Texas, that we reported on back in 2014. The specific question was "what happened to the refundable entrance fees?"
The bankruptcy court approved escrow and repayment terms of refundable fees for "certain" residents as part of a proposed reorganization plan, with the purchaser(s) of one or all of the 8 involved CCRCs having the option of "assuming" or reaffirming resident agreements; but I need to research more to find out the ultimate outcome, once the dust settled. I've reached out to a few folks to see if there was a final accounting.
In picking up the research on the Sears Methodist case, that reminded me I had not reported in this blog on another CCRC bankruptcy court proceeding, filed as a reorganization under Chapter 11 in late 2015 involving what was then known as Westchester Meadows CCRC in New York.
The August 23, 2016 opinion for In re HHH Choices Health Plan, LLC is interesting, thoughtful, and remarkably accessible for nonlawyers. The issues addressed carefully include:
- Where the debtor in the Chapter 11 proceeding is a nonprofit organization, what rules apply for possible for-profit and nonprofit bidders? For example, could state law governing and limiting transfers of assets of a nonprofit organization apply? The Court concludes that although a new operator would need to comply with state laws (such as the Department of Health's licensing rules), the Bankruptcy Code controls bidding and sale of a bankrupt debtor's assets.
- What standards apply if one bidder, for a lower price, would continue operations as a nonprofit, while the other bidder, for a higher price (and thus more attractive to unsecured creditors), would convert to for-profit operations? Here, the Court observes that New York state law makes it "clear that price alone is not determinative, and that fulfilling the corporate mission can be decisive if creditors are all being paid in full." However, that rule was "clear" only if all the debtor's creditors would be fully paid, which would not be the outcome here. After careful consideration of case precedent, the Court concludes it can confirm a lower-priced sale of the assets, where the buyer satisfies certain standards and is better aligned with the charitable mission of the operation, including in this instance protection of the interests older residents.
The Court's concludes:
July 15, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, July 12, 2018
What Lessons Will Emerge From Arizona Investigation of 92-Year Old Woman Who Shot and Killed Her 72-Year Old Son?
Reading the news of a July 2 shooting was chilling, especially for anyone associated with long-term care or elder care. According to Arizona news reports, Anna Mae Blessing, age 92, explained, "You took my life, so I'm taking yours." She used a handgun, drawing it from the pocket of her robe, to shoot multiple times, killing her 72-year old son.
Ms. Blessing had been living in an apartment, along with her son and his girlfriend; she was reportedly upset about her son's plan to transfer her to an assisted-living facility. The apartment was located in Fountain Hills, east of Scottsdale, Arizona. Ms. Blessing also reportedly attempted, unsuccessfully, to shoot her son's girlfriend, who fought her off, dislodging both the first and a second handgun.
Followup stories reported the sheriff's office had responded at least six times to "domestic" calls at that location during the previous six months.
According to a sheriff office statement, Ms. Blessing is now charged with first degree murder, one count of aggravated assault with a deadly weapon and one count of kidnapping.
On the one hand, it could be tempting to dismiss this story as an isolated, sad, ironic tragedy.
But what I've been seeing is that senior living providers, especially those offering assisted living, are recognizing that something is deeply amiss about an individual's perception that assisted living is so horrible as to warrant this reaction.
Steve Moran who publishes the Senior Housing Forum asks "Why did she have such an aversion to assisted living?" He muses, "This is a fixable problem....." For more of Steve's thoughts read: "The Headline: Woman, 92, Killed Son Who Tried Putting Her in Assisted Living."
In an editorial titled "Assisted Living's Image Problem," Lois Bowers, Senior Editor for McKnight's Senior Living News, writes:
The Blessing case undoubtedly is a complex one, with more probably in play than a simple suggestion of a move to assisted living. But even so, it presents an opportunity for introspection for the senior living industry as well.
I mean, it seems that at least one person thought that assisted living was so terrible that a prison cell was preferable. And yes, this appears to be an extreme case, but it's not the first time that an older adult has resisted moving into a senior living community.
We know that senior living can offer physical and mental health benefits for older adults. So how can the industry improve at allaying their fears and educating them about those benefits?
And what can the industry do to educate the general public about the differences between assisted living communities and skilled nursing centers? More elucidation is needed, as was made obvious by articles in the lay press about the Blessing incident that used “assisted living” and “nursing home” interchangeably, despite a press release from the sheriff's office that specified that Thomas suggested assisted living to his mother (I know; I saw the press release).
We know that assisted living communities are different from SNFs, and we know that both types of facilities have evolved over the years, and yet I see this confusion regularly in the general media. I've seen government officials make this mistake, too.
So what's the solution? Surely, sales professionals educate individual prospects and their family members when they conduct tours and hold special events at their communities. Campaigns such as the American Seniors Housing Association's Where You Live Matters effort undoubtedly help, too, as does the advocacy work by organizations representing senior living operators.
I was in Arizona the day the story broke. I confess, I spent extra time with my arm around my own 92-year old mother that week -- at her home in assisted living.
July 12, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, July 9, 2018
The Washington Post reported on the case of an 87 year old woman who convinced a judge to terminate her guardianship in favor of supported decision-making. This 87-year-old D.C. woman just made it easier for you to keep your independence explains that "[t]he octogenarian is the first senior citizen in the District to convince a court to terminate a guardianship placed on her in favor of “supported decision-making.” She and her attorneys successfully argued that with help from people in her life, she could make her own decisions and did not need a court-appointed guardian to do that for her."
Her case marks the first time that the District’s supported decision-making law, which was passed in May, has been cited in court to help a resident regain independence. Most of us have friends or relatives we turn to for advice. This is the same as that — but more. The D.C. law formalizes those relationships and requires institutions and organizations to recognize the role of people who serve in those supportive positions. The District is only the fourth jurisdiction in the country to pass the law, after Texas, Delaware and Wisconsin. (Virginia and Maryland — are you listening?)
The elder acknowledges the need for help for some things and the knowledge of who she calls to get that help. Her reaction to the ruling? She's quoted in the article: “It makes you feel powerful to be in charge of your own life,” she said. “You can have a lot of help everywhere, but you are your own boss.” She's realistic, though, recognizing that at some point she may not be able to live independently.
The Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA) incorporates supported decision-making. So far Maine has adopted UGCOPAA and a bill has been introduced in New Mexico to adopt it.
Still, she said, she worries about the future, about whether one day she will be told that she can no longer live alone in her apartment.
She knows all too well what many of us, thankfully, have not yet had to learn — the suddenness with which life can change.
Friday, June 29, 2018
A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging. She is examining what happens when struggling nursing home operations require intervention to protect existing residents. Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager. Ms. Brambila begins:
The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.
In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.
State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.
The management fee is paid by fines collected from nursing home facilities.
Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.
The average cost for managing these troubled homes exceeded $335,000.
There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers. Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota. According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.
For the full story, read "Pennsylvania to pay $475,000 for temporary nursing home manager." Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.
June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 28, 2018
The Washington Post reported on one of the latest famous persons to be embroiled in a guardianship proceeding. Astronaut Buzz Aldrin is fighting attempts by his kids to place him under guardianship. Buzz Aldrin is suing his children. They say they are trying to protect the legendary astronaut.explains that his kids sought to be appointed as guardian. Mr. Aldrin responded by suing them along with his manager, on the basis that "they sought to take advantage of him [and now], the family is embroiled in a rancorous dispute that has spilled from the courts into a public spectacle that both sides say they don’t want." Mr. Aldrin's suit claimed that "they assumed control of his “personal credit cards, bank accounts, trust money, space memorabilia, space artifacts, social media accounts and all elements of the Buzz Aldrin brand.” The suit accuses [one child] of a breach of fiduciary duty." The children quoted in the article offering a contrary view of matters
June 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Wednesday, June 27, 2018
How Far Can Courts Go in Reassigning Income to a Community Spouse When it Affects Medicaid Payments?
It is a while since I've had a chance to report on an interesting Medicaid planning case. Perhaps that alone is a sign of the times?
Last month in Michigan, however, an appellate court weighed in on an interesting question about the power of courts to reallocate income, from the institutionalized spouse to the community spouse, where such a decision would impact payment sources for the nursing home. In a per curiam decision, the court considered a pair of similar cases, where the state probate courts had entered protective orders that directed "all income" received by an institutionalized spouse (IS) be paid to the community spouse for maintenance purposes. The State Department of Health and Human Services objected, as clearly the state winds up paying more for the IS's care if the community spouse gets all the IS's income.
Does the probate court have authority -- jurisdiction? -- to make such a ruling? What criteria are relevant to the allocation of income? In other words, is the probate court the right place to avoid inadequate safeguards against impoverishment of the community spouse? Interestingly, the Court, at footnote 13, distinguished the two cases from past attempts to make gifts or use protective proceedings for planning purposes before an initial determination of Medicaid eligibility. The court summarized its ultimate decision:
For the reasons explained in this opinion, we conclude that the probate courts have the authority to enter protective orders providing support for a community spouse whose institutionalized spouse is receiving Medicaid benefits. However, we also conclude that the probate courts’ authority to enter such support orders under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq, does not include the power to enter an order preserving the community spouse’s standard of living without consideration of the institutionalized spouse’s needs and patient-pay obligations under Medicaid. Given that the orders in this case were entered without consideration of Joseph’s and Jerome’s needs and patient-pay obligations under Medicaid, we find that the probate courts abused their discretion by entering the orders at issue in this case. We therefore vacate both support orders and remand for a reconsideration of Beverly’s and Ramona’s need for support under the proper framework.
For more, read the full decision in In re Estate of Vansach, Michigan Court of Appeals, May 22, 2018.
Counsel representing the community spouse has posted his own take on the decision, describing it as a win, in a post titled BRMM Wins Significant Elder Law Case in Michigan Court of Appeals.
No success in finding a mirror image article from the DHHS lawyers. With the split decision, I suppose they could have written DHHS Wins Significant Elder Law Case in Michigan Court of Appeals.
Tuesday, June 26, 2018
Two more items to add to your resources and reading on end of life in the U.S.
First: The New York Times ran an op-ed earlier in the month, Let Dying People End Their Suffering.Written by Diane Rehm, the focus of this piece is on California's aid-in-dying law. She writes about a friend with terminal cancer who expressed relief about the law that allowed her to seek aid-in-dying. As readers of this blog know, the law was overturned, so Ms. Rehm writes about the turmoil the decision has caused for those with terminal illnesses and their families. She writes about her husband, in Maryland, without the option of aid-in-dying, who instead opted for voluntarily refusing food and fluids.
Ms. Rehm makes a heartfelt argument in support of the aid-in-dying law, concluding her article this way
Let me be clear: I understand that many people believe that only God should determine the time of their death, and I support them 100 percent. Others want every additional minute of life that medical science can give them, and I support those people 100 percent. But the end of life is an extremely personal experience. If, when my time comes, I see only unbearable suffering ahead of me, then I want my preference to have access to medical aid in dying to be supported 100 percent, as well.
As Archbishop Desmond Tutu has written, “Regardless of what you might choose for yourself, why should you deny others the right to make this choice?”
Back in May, the president of the Hastings Center wrote a piece, Hastings Center President Calls for “Moral Leadership” to Improve End-of-Life Care.
The president made two lectures, "the 23rd annual Joseph N. Muschel Medical House Staff Award Lecture at Medicine Grand Rounds at Columbia University on May 16 and the Annual Wilhelm S. Albrink Lecture in Bioethics at West Virginia University on May 18... [where she] called on clinicians, hospital leaders, and bioethicists to broaden the usual ethical framework beyond “thin” notions of autonomy to a more robust relational ethics, that would build new systems, better capable of ensuring that frail older Americans and their caregivers get the support they need."
In her talk, when she turned to the topic of end of life "and population aging, she told the audiences: 'Redesigning our systems of health care delivery is one of the most important challenges of our time and will take significant moral leadership. But even that is not enough: beyond changes within care delivery settings, we also need to redesign our communities – so that housing, transportation and social supports are there for the increasing number of Americans living longer with frailty and dementia.'"
I'm sure these two pieces will not be the last on end of life care, so, stay tuned.
Wednesday, June 20, 2018
On Friday, July 13, from 2:00–3:00 p.m. eastern time, the Elder Justice Initiative presents the webinar “The Forgotten Victims: Elder Homicides Part 2, A Prosecutor's Perspective." Please join us as Belle Chen of the Los Angeles County District Attorney’s Office discusses the unique challenges of investigating and prosecuting elder and dependent neglect homicides... This webinar will highlight some of the challenges and common dynamics in these cases through a comparison of two elder neglect cases that went to trial and were presented to juries. This presentation can aid law enforcement in their investigations of complex elder neglect cases and prosecutors in their review, filing, and litigation in criminal court.
To register, click here