Wednesday, May 23, 2018

California AG Files Appeal in From Court Decision Setting Aside Physician-Aided Death Law

Both Becky and I have written about a California trial court's recent ruling that a California's law permitting physician assistance in death was enacted in an unconstitutional manner.  The judge granted a window of five days before the ruling would become effective, to permit any appeal. That appeal has now been filed by the California Attorney General.  From the Los Angeles Times:  

California Atty. Gen. Xavier Becerra on Monday filed an appeal against a judge's recent ruling overturning the state's physician-assisted suicide law. . . . 

 

Becerra's action Monday moves the case to an appeals court, which will decide the future of the law. He also asked that the law stay in place while the matter is further litigated, a request that will most likely be granted, said Kathryn Tucker, an attorney who heads the End of Life Liberty Project at UCSF/UC Hastings Consortium on Law, Science & Health Policy.

As Becky says, stay tuned.  But probably best not to hold your breath while awaiting the next ruling. 

May 23, 2018 in Advance Directives/End-of-Life, Current Affairs, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

A Closer Look at Continuing Care at Home Contracts (Sometimes Known as Continuing Care Without Walls)

As I prepare for some summer writing and speaking projects, I've been taking a closer look at Continuing Care at Home (CCaH), sometimes also called Continuing Care Without Walls.  Pennsylvania was among the early states to license CCaH providers, doing so under the Pennsylvania Department of Insurance's regulatory authority for Continuing Care Retirement Communities (CCRCs).

CCaH is something of a hybrid, contract-based product, sort of a combination of “home care agency” and “long-term care insurance.” The customer makes a prepayment for access to specific services, to be provided in the customer's own home,  The services offered tend to emphasize care coordination; several different types of plans may be offered by a single provider.

From the providers I've reviewed, CCaH contracts typically have an upfront “entry” or membership fee, plus monthly service fees.  In some of the plans there is also cost sharing and deductibles for services.  Overall, the fees, as one would expect, are lower than for traditional CCRCs, but can still be significant.

For example, in a recent report I reviewed, one operation described a series of contracts available.  One contract involved a 90% "refundable" entry fee plan.  In 2012,  a prospective member who qualified at age 88 could expect to pay an entry fee of $147,160, plus monthly service fees ranging from $290 to $584.

In some instances, the company may charge annual fees, rather than a single entry fee plus monthly fees. For example, another Pennsylvania CCaH provider offers "life care plans," "home care plans," and "traditional life care plans."  The first two contracts have annual fees, while the third, "traditional life care plan," is structured with a single upfront entry fee, plus monthly fees of 1% of the entrance fee. 

At that company, for the "life care plan" with annual fees,  a prospective member could select a "life time benefit" of between 1 and 7 years, plus a maximum daily benefit of between $75 per day to $250 per day, with options for a waiting period, cost of living adjustments, and "shared care."  As of April 2016, if a prospective member at age 80 chose a life care plan with a 7 year "maximum life time benefit," no waiting period, no cost of living adjustment and no shared care, he or she could expect to pay annual fees of around $7,880 for a $100 per day benefit -- or up to $15,60o per year for a $200 per day benefit.   Fees would be discounted by 20% for two or more people per household and the benefits and annual fee "may vary based on the member's health status at time of enrollment."  Further, the provider cautions, "though not anticipated, the annual fee for members of life care and home care plans may be adjusted after the fifth anniversary of their continuing care agreement," and any such adjustments would be on a uniform basis for all members in a specific plan.  

In Pennsylvania, all of the current providers of CCaH are connected to or developed by operators of brick and mortar CCRCs, and therefore the CCaH contracts sometimes offer priority admission to the related CCRC if resident care is desired.  I don't think this connection between a CCaH program and a CCRC facility is necessarily required in other states. 

Traditional long-term care insurance has had a troubled history nationally and in Pennsylvania, CCaH providers seem to avoid that history by staying closely tied to the positive reputation of a visible, attractive brick and mortar CCRC.  However, CCaH contracts do not necessarily promise to use the staff or services from the related CCRC, and if so, the CCaH provider may turn to third parties, such as home care agencies, in the search for workers.  The contract terms are key and require careful reading.

Pennsylvania currently licenses five CCaH providers.  The longest operating provider is Friends Life Care at Home, a not-for-profit operation in southeastern Pennsylvania.   It was organized in 1985 and according to registration information at the Pennsylvania Department of Insurance it has approximately 2,500 contracts in existence.   Friends Life Care recently entered into a joint marketing agreement with SpiritTrust Lutheran Life

Continue reading

May 23, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, May 22, 2018

Congrats to NAELA

NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits.  The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more.  NAELA members unable to attend may check the NAELA website for more information.

In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling.  Congrats NAELA!

(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)

 

May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 21, 2018

California Aid-in-Dying Law Overturned

A number of news outlets reported that a trial court judge has overturned California's aid-in-dying law. As an example, the LA Times reported Riverside judge overturns California's doctor-assisted suicide law. The judge ruled "that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law."  The law, which has been in effect about 6 months, has already been used, according to sources quoted in the article.  "In the first six months California's law was in effect, more than 100 people made use of it to end their lives. Fifty-nine percent of them had cancer, according to state data." Both sides on this issue are quoted in the article. The state attorney general has 5 days from the order's entry to file an appeal.

Stay tuned.

 
 

May 21, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, May 18, 2018

Doctors Discussing Gun Safety With Elder Patients

Kaiser Health News published a compilation of recent stories about gun safety and one caught my eye: the advantage of doctors discussing gun safety with elder patients. Doctors Should Be Discussing Gun Safety With Aging Patients, Researchers Say.

The reference to the story  from the LA TImes, As more older Americans struggle with dementia, what happens to their guns?seemed particularly on point and the KHN story published the opening from the LA Times article

The man had been a patient for decades, retired now from a career in which firearms were a part of the job. He was enjoying his days hunting, or at the shooting range with friends. But episodes of confusion had led to a suspicion of dementia, and the nights were the worst: At sundown, he became disoriented, anxious and a little paranoid, and had started sleeping with his loaded pistol under the pillow. One night, he pointed it at his wife as she returned from the bathroom. It wasn't clear whether he recognized her, but he was certainly confused — and she was terrified. Thankfully, the incident did not end in disaster.

Regardless of your position on the gun control debate, consider these statistics from the LA Times article

Roughly 1 in 3 adults over 65 in the United States is thought to own a gun. An additional 12% live in a household with someone who does.

As seniors turn 70, their odds of developing Alzheimer's disease in a given year jump from less than 1% (among those 65 to 69) to 2.5% (among those 70 to 74), and keep rising from there. By 2050, the number of older Americans with Alzheimer's is expected to reach 13.8 million.

The article discusses driver safety and draws corollaries to gun safety. The article highlights the lack of response to this issue at the state level:

No federal laws prohibit the purchase or possession of firearms by a person with dementia. Only two states, Hawaii and Texas, explicitly mention dementia or similar conditions in their firearms statutes.

In Hawaii, any person under treatment for "organic brain syndromes" is prohibited from owning a gun. Texas law makes individuals diagnosed with "chronic dementia" ineligible for a license to carry a handgun in public. But it does not limit such a person's right to purchase or possess firearms.

One expert quoted in the article describes this as not an issue of taking away someone's guns but instead a decision that focuses on the person's safety.

May 18, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, May 17, 2018

State Judge Overturns California's Assisted Suicide Law

On May 15, 2018, a state judge issued a long-awaited ruling, concluding that the California Legislature violated the state constitution by enacting the state's End of Life Option Act that became effective in 2016 during a 2015 special session dedicated to healthcare issues.  From the Los Angeles Times:

A Riverside County judge overturned California's physician-assisted suicide law on Tuesday, giving the state attorney general five days to file an appeal to keep the law in place.

 

California's law, which allows terminally ill patients to request lethal medications from their doctors, has been the subject of a fierce and emotional debate since it was approved in 2015. The state was the fifth in the nation to legalize the practice.

 

Superior Court Judge Daniel A. Ottolia said Tuesday that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law.

 

"We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."

 

In a statement emailed to The Times, California Atty. Gen. Xavier Becerra said: "We strongly disagree with this ruling and the state is seeking expedited review in the Court of Appeal."

For more, read Riverside Judge Overturns California's Doctor-Assisted Suicide Law.

May 17, 2018 in Advance Directives/End-of-Life, Current Affairs, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, May 16, 2018

Grandparent Rights and Responsibilities -- and New Laws

Last Sunday, CBS' 60 Minutes ran an extended feature story on the role of grandparents as primary caregivers for grandchildren, often because of untrustworthy parents with opioid or other addiction problems.  The story reported that "stoked by the opioid crisis, 21,000 children -- just in Utah -- live with their grandparents."

The feature also suggested some of the financial consequences for the extended family, as grandparents were exhausting their own retirement savings in order to provide for the younger children.  Nonprofit programs, such as Grandfamilies, sometimes are able to provide informal support for the grandparents.  

Along the same lines, Pennsylvania's Governor Wolf signed new laws, Senate Bill 844 (Printer's No. 1531), which became Act No. 21, on May 4, 2018.  The law recognizes expanded standing for grandparents to seek physical or legal custody for grandchildren, if they can show "clear and convincing evidence" of all of the following: 

(I) The individual has assumed or is willing to assume responsibility for the child. 


(II) The individual has a sustained, substantial and sincere interest in the welfare of the child.

 

In determining whether the individual meets the requirements of this subparagh, the court may consider, among other factors, the nature, quality, extent and length of the involvement by the individual in the child's life.

 

(III) Neither parent has any form of care or control of the child.

Pennsylvania estimates that there are 82,000 grandparents acting as sole caregivers for roughly 89,000 grandchildren.  Other related bills still pending in Pennsylvania include support for creation of a "Kinship Caregiver Navigation Program," and a means to appoint a temporary guardian when a parent enters drug or alcohol treatment.     

Additional history on the shifts in thinking on grandparent rights can be important.  For example see this Pennsylvania law firm's blog post from 2013 on amendments that removed "automatic" standing for grandparents to seek custody.     

The Pennsylvania Bar Institute, responding swiftly to the latest changes, is offering a Webinar  tomorrow (May 17, 2018) on the new laws.   

May 16, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Programs/CLEs, State Statutes/Regulations, Statistics | Permalink | Comments (0)

National Senior Fraud Awareness Day

Yesterday, May 15, 2018, was designated by the U.S. Senate as "National Senior Fraud Awareness Day." The reason for the day, according to the Congressional Record is "To Raise Awareness About the Increasing Number of Fraudulent Schemes Targeted At Older People of The United States, To Encourage The Implementation of Policies to Prevent These Scams From Happening, and to Improve Protections From These Scams For Seniors."

Senator Collins for herself and 4 other Senators, and introduced the resolution, S. Res. 506.

Here it is in its entirety:

Whereas, in 2017, there were more than 47,800,000 individuals age 65 or older in the United States (referred to  in this preamble as ``seniors''), and seniors accounted for  14.9 percent of the total population of the United States;

Whereas senior fraud is a growing concern as millions of older people of the United States are targeted by scams each year, including the Internal Revenue Service impersonation scams, sweepstakes and lottery scams, grandparent scams, computer tech support scams, romance scams, work-at-home scams, charity scams, home improvement scams, fraudulent investment schemes, and identity theft; Whereas other types of fraud perpetrated against seniors include health care fraud, health insurance fraud,  counterfeit prescription drug fraud, funeral and cemetery  fraud, ``anti-aging'' product fraud, telemarketing fraud, and internet fraud;
Whereas the Government Accountability Office has estimated that seniors lose a staggering $2,900,000,000 each year to an ever-growing array of financial exploitation schemes and scams;
Whereas, since 2013, the fraud hotline of the Special Committee on Aging of the Senate has received more than 7,200 complaints reporting possible scams from individuals in all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
Whereas the ease with which criminals contact seniors through the internet and telephone increases as more creative schemes emerge;
Whereas, according to the Consumer Sentinel Network Data Book 2017, released by the Federal Trade Commission, people age 60 years and older were defrauded of $249,000,000 in 2017, with the median loss to defrauded victims age 80 and older averaging $1,092 per person, more than double the average amount lost by those victims between the ages 50 and 59 years old;
Whereas senior fraud is underreported by victims due to embarrassment and lack of information about where to report fraud; and
Whereas May 15, 2018, is an appropriate day to establish as ``National Senior Fraud Awareness Day'': Now, therefore, be it
Resolved, That the Senate--
(1) supports the designation of May 15, 2018, as ``National Senior Fraud Awareness Day'';
(2) recognizes ``National Senior Fraud Awareness Day'' as  an opportunity to raise awareness about the barrage of scams  that individuals age 65 or older in the United States  (referred to in this resolving clause as ``seniors'') face in person, by mail, on the phone, and online;
(3) recognizes that law enforcement, consumer protection groups, area agencies on aging, and financial institutions all play vital roles in preventing scams targeting seniors and educating seniors about those scams;
(4) encourages implementation of policies to prevent these scams and to improve measures to protect seniors from scams targeting seniors; and
(5) honors the commitment and dedication of the individuals and organizations who work tirelessly to fight against scams targeting seniors.

  

 

May 16, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, May 15, 2018

Pennsylvania Considering Changes to Guardianship Laws for 2018 Passage

Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session.  I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July.  The pending legislation includes:

  • Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth.  On April 16, 2018 this bill was referred to the Senate Appropriations Committee.  

I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons.  The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications. 

  • House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."  

While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth.  In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional.  Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.

Continue reading

May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Monday, May 14, 2018

Which States Mandate Certification or Licensure of Guardians?

As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018.  The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos.  In-person training programs are also under development, on a county-by-county basis. 

I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.  

Nisa also provided links to the new Maryland Rules on mandatory training for guardians:  Md. Rules 10-108, 10.205.1, and 10-304.1.  In addition, these rules refer to  Guidelines for Court-Appointed Guardians of the Person and Property.  Thank you, Nisa! 

The state of Washington also is developing a program for "lay/family (non-professional) guardians training."  

County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.  

Other states have also been active in establishing education and testing for prospective or current guardians.  Several states' programs have been developed following allegations of improper appointments or lack of oversight.  We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.   

A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes  described in legislation or court rules as "nonprofessional guardians."   Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons.  Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members. 

The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules.  As depicted on the map, some states have adopted  CGC certifications as the state standard for approval of "professional" guardians.  In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.   

The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians. 

You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.  

May 14, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Sunday, May 13, 2018

New Article: Primer on Disability Law for Land Use & Zoning

The intersection of land use and zoning laws and regs with a person's ability to live at home is so important. I wanted to let you know about a new article on the topic: A Primer on Disability for Land Use and Zoning Law  posted recently on SSRN.  The article is published in Volume 4 of  the Journal of Law, Property, and Society at 1 (March 2018). Here is the abstract

Approximately 20-30 percent of American families have a family member with a disability, many with a mobility impairment. Many people need access to disability services and programs. They need the availability of group homes, senior housing, drug rehabilitation centers, medical marijuana dispensaries, and counseling clinics. This leads to land use disputes.

This Primer is designed for people familiar with property law and land regulation (planning and zoning), and with little experience with disability law. The goal is to present an introduction that facilitates understanding of the intersections between land use law and disability. In general, the legal requirements of primary concern are limited, such that only a few parts of our expansive disability law are most relevant to the vast majority of planning and zoning matters. This Primer will guide the reader through these key provisions. The Acts discussed in this Primer include the Americans with Disabilities Act (ADA), the Rehabilitation Act (RHA), and the Fair Housing Act (FHA).

The 45 page article is available for download as a pdf from the Journal's website, here.

May 13, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing, Other, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, May 8, 2018

The Chicken Little Game with State Payments to Nursing Homes?

According to news reports coming out of Louisiana, the state's Department of Health will begin sending "eviction" notices to nursing home residents later this week.  This strikes me as a particularly abusive form of gamesmanship connected to state budget negotiations.  See what you think!

Louisiana's Department of Health will begin sending nursing home eviction notices Thursday to more than 30,000 residents who could lose Medicaid under the budget passed by the state House of Representatives.

 

"The Louisiana Department of Health is beginning the process of notifying all impacted enrollees that some people may lose their Medicaid eligibility," Department of Health spokesman Bob Johannessen said. "The goal of the department is to give notice to all affected people as soon as possible in order that they begin developing their appropriate plans."

 

Gov. John Bel Edwards' staff has planned a press conference Wednesday for more details, a day before the notices are set to be mailed to 37,000 Medicaid recipients in nursing homes or other long-term care facilities.

 

"(The Department of Health) told us they're sending out the letters May 10," said Mark Berger, executive director of the Louisiana Nursing Home Association, during testimony at the Senate Finance Committee meeting Monday.

 

The issue was front and center in Senate Finance, which was hearing public testimony on the budget sent to it by the House for most of the eight hours the panel met.

 

"This sounds like mass chaos," said Sen. Regina Barrow, D-Baton Rouge, who called the letter notification "very troublesome."

For more see the Monroe New Star Report on "Nursing Home Eviction Notices to be Sent Tuesday."

May 8, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 7, 2018

Wisconsin Study Reports 20% of Long-Term Care Jobs Are Unfilled

From Wisconsin Public Radio on the Long-Term Care Workforce Crisis Report of 2018:  

A coalition of Wisconsin health care organizations is warning that the state's shortage of long-term care providers continues to grow.

 

The study, put together by several groups across the state, says 1 in 5 direct caregiver positions in the state is going unfilled. That's up from 1 in 7 positions in 2016.

 

Starting wages in the profession are so low that many potential workers never apply, according to the report. The median hourly starting wage for personal caregivers is $10.75 an hour, according to the study, while other positions outside health care start at $12 an hour.

 

The report found Wisconsin's low rate of Medicaid reimbursement is a key factor keeping provider wages low.

 

Sarah Bass of the Wisconsin Assisted Living Association said with so many unfilled positions, many facilities are cutting back, even though demand for long-term care continues to grow.

 

"Assisted living providers are closing their doors, or shutting down areas of their assisted living facilities, because they don't have the staff to safely take care of the residents," she said. "They're reducing their admissions."

These problems exist despite some increases in state funding for skilled care and family care workers in the latest budget.  

May 7, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Sunday, May 6, 2018

Maryland Offers On-Line Orientation Video for Prospective Court-Appointed Guardians

As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts.  In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based  "orientation program" before they are appointed guardian of a minor or disabled person.  The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts.   Here is a link to the video.  

What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court.  I think that many courts are still struggling with their  own roles in this regard, but here the lines of responsibility are explained clearly.

The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but  without making the information so overwhelming that good candidates decline the role.  The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights. 

In my opinion, this type of video is a good first step.  But just a first step.  

May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Thursday, May 3, 2018

21st Annual Elder Law Institute in Pennsylvania, July 19-20, 2018, Open for Registration

Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania  It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing.  On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption."  Doesn't that title capture the mood of the country?!  

Practical workshops include:

  • Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
  • Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
  • Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
  • Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
  • Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
  • Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
  • Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
  • Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis

Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues).  Registration is here.  

May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Contrasting Views on "Peace of Mind" in Community Care Settings

Frequent reader Karen Miller from Florida made a timely catch by sending me two articles that both mention the "peace of mind" that can accompany living in purpose-planned retirement communities, including CCRCs or LPCs.  Thanks, Karen!  

In last Sunday's edition of the New York Times, reporter Peter Finch offered "How to Talk About Moving to a Retirement Home: It's a Journey." He includes admissions by once highly reluctant residents, including one who finally gave in to his wife's desire for a new setting:  

For the once-skeptical Mr. Strumsky, it took only days for him to start feeling certain that he and his wife, who is 72, had made the right decision. About a week after moving in at Charlestown [a retirement community outside of Baltimore], he went out to walk the dog at night and ran into a pair of women he didn’t know who were chatting amiably in the parking lot. About 25 minutes later, he returned home and saw the same women, still talking.

 

“They were so unconcerned about their personal safety, they were oblivious to anything going on around them,” Mr. Strumsky said. “And it just hit me: I really wished my mother or my sister or my aunt could have had this experience, to feel that safe and secure. At that point, it was like a light bulb going on. It was an instant turnaround for me.”

By contrast, Patricia Hunt, a columnist for the News Leader (part of the USA Today Network), writes about "friends whining about the rules of their . . . subdivision," noting that the security that some people seek can come with a regulatory price tag, even if the regulator isn't the government.  She writes in part:

In retirement many people with the means to do so choose a “continuing care retirement community.” There is a big price range, but basically you pay an entrance fee, and most require that you be well enough to live independently to be admitted. They provide food service, activities, and stepped up sections for “assisted living” and for the most debilitated, “skilled nursing care.” This is the most expensive option for one’s last years.

 

But the rules for the residents of CCRCs are set entirely by people who do not live in them. And flexibility is the most restricted of all options. If you grandson who ran away to join the circus can be talked into living with you for a few months until he can sort things out with his parents, you cannot let him do that. If you decline in health and your granddaughter is willing to come live with you so you don’t to go to assisted living or skilled nursing care, you can’t do that either. You can hire people to come in night and day, but your family member cannot simply move in. She must have another permanent address. At least this is how most of them work.

 

If you[r] adult child gets sick or loses a job and needs to stay with you, it is not allowed. And you may not have the money to help him or her out if you have spent it all on the entrance fee and monthly fees.

Hunt concludes by questioning whether people "really" do hate regulation, noting "there is plenty of evidence of that some of them are not only willing to live with more regulations than many other people, they are willing to pay a lot of money to do so." 

For more from Hunt, read the full column "We Hate Regulation, But We Willingly  Trade Away Our Basic Freedoms for Comfort, Security."  

May 3, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, May 2, 2018

Wednesday's Child: Lawsuit Filed Against NH Over Mother's Death From Scabies Infection

I'm often hesitant to post photos or videos from allegations about nursing home neglect.  As an outsider, it can be hard to know the full facts.  However, I think that one story about litigation that follows the 2015 death of a 95 year-old woman (reportedly a resident in a Georgia nursing home for some 4 years) from alleged complications associated with scabies, raises important questions from several perspectives.  The questions include the roles of companies and individuals, including family members and caregivers, and about the state in its regulatory role.

Scabies, by the way, is a parasitic infection.  Some of the news articles include copies of  court pleadings.  The facility denies all allegations of fault. Here is a television news clip that presents several key questions.  Plus a word of caution, as the clip includes graphic details:   

 

May 2, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, April 26, 2018

In Continuing Care or Life Plan Communities, Do Operators Face Liability for "Failing" to Transfer Residents to Higher Levels of Care?

Just as spring is finally seeming to arrive in the Mid-Atlantic region and I'm catching up on non-classroom projects, I realized I hadn't fully understood the potential legal issues in a tragic fact pattern from last winter, when an 85 year old women died after being trapped overnight outside her home near Philadelphia in March.  The legal issues are outlined in a suit filed against the CCRC where she was living in an "independent living" unit.  The lawsuit claims her "caregivers should have known" that she needed more care, pointing to the contractual language that permitted the facility to assess and transfer her to a more  supervised setting as her care needs increased.  From the Philadelphia Inquirer on February 9, 2018 :    

Her son, Blake Rowe, a drug company scientist, has filed suit against Shannondell at Valley Forge in Audubon and its security company, Universal Protection Service LLC, claiming that they should have done more to protect his mother. She had been allowed to stay in an independent-living apartment after Shannondell knew she had a tendency to become confused and wander aimlessly, the suit says.

 

“I put my trust in them. They said they would do an assessment they never did,” said Rowe, who got the “horrible” news that his mother was in the hospital as his plane landed in Florida for his honeymoon.  As for the security company, he said, “If they were doing their rounds, someone would not be at a door for five hours freezing to death.”

Ironically, I often hear from family members protesting the compelled transition of a resident to a higher level of care, as the family members may disagree more help is needed, or feel the help can be provided adequately "in" the independent living unit.  The Inquirer article summarizes the dilemma for operators and families:  

The Hinds case also illustrates a trend in senior housing — at all levels of care, including independent living, residents are older and have more health problems than in the past — with safety implications that may surprise families. Most seniors want to be as independent as they can for as long as they can.  Families shopping for senior apartments may want to look beyond the quality of the food or beauty of the grounds and ask what will happen when a loved one declines:  Were your buildings and security designed with dementia in mind?  Whose job is it — the family’s or the facility’s — to start the conversation when a resident needs more help?

For more on the "Hinds" case, see His Elderly Mother Wandered Out Into the Cold and Died.  Whose Fault Was It? 

 

April 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, April 25, 2018

New Jersey's ORANJ - 2018 Annual Meeting HIghlights


On April 24, 2018,  members of the Organization of Residents Association of New Jersey, or  ORANJ, held a plenary meeting at Cedar Crest Retirement Community in Pompton Plains, New Jersey.  Members Gathering at Cedar Crest Retirement for April 2018 ORANJ Annual MeetingORANJ President Ron Whalen began the meeting with an update on pending legislation attempting to resolve residents' concerns about timeliness of payments on "refundable fee agreements."  Part of the message is reflected in the history of Pat Lund, a resident of a CCRC in Waterford Township, New Jersey, who waited eight years for her "refundable fee" to be paid after moving out of her apartment.  Under the terms of her contract, the refund was not "payable" until someone else occupied her specific unit but the facility seemed to have little interest or incentive to market her particular unit.  For more on this topic, see my update post from last week.  As summarized by Ron Whalen, "many of the 10,000 New Jersey residents in CCRCs (also known as Life Plan Communities or LPCs) have this type of contract."   ORANJ Meeting President Ron Whalen

James McCracken, the new president and CEO of LeadingAge New Jersey was the afternoon speaker and he provided a roundup of topics affecting older adults in New Jersey as the legislative season draws to a close, including concerns about "earned sick leave," delayed Medicaid payments by the state to care facilities, proposed minimums on CNA staffing at care facilities, and changes to minimum wage.  

ORANJ Meeting  April 2018 Speaker James McCracken LeadingAge NJI spoke in the morning about issues I see affecting CCRCs and LPCs nationally and in New Jersey, including topics that challenge tax-exempt CCRCs, such as pressure to make payments in lieu of taxes to state and local authorities.  On the topic of resident concerns, I addressed what I call the "big three":  lack of transparency on cost and funding issues,  the need for effective resident voices in governance, and excessively paternalistic attitudes of some management.  ORANJ Meeting April 2018

 This is at least my third time speaking with ORANJ members over a period of several years, and each time I visit I'm impressed with the strength of their resident organization and their ability to get the state legislature to listen.  ORANJ helped their state to be one of the first to get legislative support for CCRC residents gaining the statutory right to serve as voting members on boards of governance, and ORANJ advocacy was also  instrumental in passage of an enhanced "bill of resident rights" for CCRC operations. 

New Jersey has approximately 40 CCRC/LPC communities within the state.  Some 87 percent operate as not-for-profit, while another 13 percent are for profit.  The majority of the communities are now part of "multi-site" organizations, and I spoke with several residents who reported on pending conversions of not-for-profit to for-profit.  

  

April 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, April 19, 2018

Sentate Special Committee on Aging Hearing on Guardianships

Yesterday, the Senate Special Committee on Aging held a hearing on guardians exploiting individuals under guardianship. The hearing, "Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.”  offered 4 witnesses, including elder law prof, and reporter of the new Uniform Guardianship, Conservatorship & Other Protective Arrangements Act, Associate Dean Nina Kohn. The committee chair and ranking member opened the hearing with their individual statements.  Their statements, along with the witnesses' testimonies, are downloadable as pdfs. There is also a video of the hearing, available here.

April 19, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink