Wills, Trusts & Estates Prof Blog

Medicaid and LTC Coverage

Gene Coffey (staff attorney at the National Senior Citizens Law Center in Washington, D.C.) has recently published his article entitled Narrowing Medicaid's LTC Coverage? The Implications of the DRA's Home and Community-based Care Benefit, 9 Marq. Elder's Advisor 131-153 (2007).

Here is an excerpt from this article:

The purpose of this article is to examine the new HCBS option and its potential to narrow NF care entitlement, to consider the new option in the context of state efforts to modify clinical eligibility standards, and to identify how far states may go in making standards more stringent. Ultimately, it is entirely up to states to decide whether they will use the new option to expand or contract coverage. Fortunately, the first state to implement the HCBS option has chosen to use it to expand coverage. Still, because of recent efforts by other states to reduce enrollment by narrowing the NF clinical standard, and because of pressure states may feel to identify ways to reduce their LTC obligations, do not lightly dismiss the possibility that a state may attempt to restrict coverage by using the HCBS option. It is therefore important to identify the limitations of the states' ability to do so.

Need an Organ? Don't Smoke Weed!!

Timothy Garon is suffering from hepatitis C and is in urgent need of a liver transplant.

Timothy was recently refused a spot on the transplant list because of his use of marijuana.  In fact, he was even arrested for growing marijuana in December 2007.

Here are some additional details from Gene Johnson, Medical marijuana patients denied a spot on transplant list, Seattle Times, April 26, 2008:

Because of the scarcity of donated organs, transplant committees such as the one at the University of Washington Medical Center have tough standards for deciding who should get them. Does a candidate have other serious health problems? Will he religiously take anti-rejection medicines? Is there good family support? Is the candidate likely to drink or do drugs? * * *

His case poses a new ethical consideration for those allocating organs, one that could become more common as a dozen states now have medical marijuana laws: When dying patients need a transplant, should it be held against them if they've used dope with a doctor's blessing?

Garon, who has been hospitalized or in hospice care for two months straight, said he turned to the university hospital after Seattle's Harborview Medical Center told him he needed six months of abstinence. The university also denied him, but said it would reconsider if he enrolled in a 60-day drug-treatment program.

This week, at the urging of Garon's lawyer, Douglas Hiatt, the university's transplant team reconsidered anyway, but it stuck to its decision.

Dr. Brad Roter, the Seattle physician who authorized Garon's pot use for nausea, abdominal pain and to stimulate his appetite, said he did not know it would be such a hurdle if Garon were to need a transplant.

Medicaid eligibility rules in effect at time of application determine whether a trust is a countable resource

The Ohio Supreme Court has resolved a conflict among the intermediate appellate courts by holding in Pack v. Osborn, 881 N.E.2d 237 (Ohio 2008), that the rules in effect at the time the beneficiary of a trust applies for Medicaid benefits determine eligibility but that the nature of the beneficiary’s interest in the trust is determined by the law in effect at the time the trust was created.

Estate Planning for Non-Married Couples

Kathleen Ford Bay (Attorney at Law, Blazier, Christensen, Bigelow, and Virr, P.C.) has recently published her article entitled Untying the Knot– Until Death and Taxes Do Us Part, RPPT eREPORT (Feb. 2008).

Here is an excerpt of the summary of her article:

To be cautious and practical, always discuss with same-sex and unmarried couples the following:

1. Wills (avoid testamentary libel);
2. Financial powers of attorney;
3. Health or medical powers of attorney;
4. Advanced Directives (Living Wills);
5. Revocable trusts and transfer of assets to such trusts (consider the mortgage company; insurance on assets; title insurance on home);
6. Declaration or nomination of guardian or conservator and stating who can never be a guardian;
7. Beneficiary designations (insurable interest) and non-probate property;
8. Providing for children (adoption and other issues); and
9. Funeral Directive.***

DRA and Its Effect on Long-Term Care Services

Ellen O'Brien (Public Policy Institute at AARP, Washington, D.C.) has recently published her article entitled What Is Wrong with the Long-Term Care Reforms in the Deficit Reduction Act of 2005?, 9 Marq. Elder's Advisor 103 (2007).

Here is an excerpt from the conclusion to her article:

The DRA provides some modest relief to the federal, state, and local governments that jointly finance Medicaid, and it promises to target those resources more effectively. Although it is possible to imagine a scenario where public subsidies are reduced for upper middle-class individuals who are able to pay for their own care in order to improve the amount and quality of means-tested assistance for low-income individuals, the DRA is unlikely to deliver it. It remains to be seen how states will implement the DRA and how elderly applicants for Medicaid assistance will be affected. However, it is likely that much of the savings will accrue because those with very modest resources will spend more on care.***

Some may argue that advocates for better long-term care services were somewhat successful due to the DRA reforms that increased flexibility to expand home services, community-based services, and provided additional federal monies to pay for those services. However the fundamental goal of the DRA is to reduce public responsibility and increase private responsibility for long-term care. That is a worrisome trend. Changing course to reduce the already large burdens on those who need care will require better appreciation of the gaps in the current system, the impact of these gaps on individuals and families, and the feasibility and affordability of meaningful alternatives to the inadequate approach to financing that we have today.

Trustees Report Medicare’s “Serious Financial Status”

The following is from a press release issued by the U.S. Department of Health & Human Services on March 25, 2008, entitled Medicare Trustees Report Shows Serious Financial Status of Medicare Program:

In their annual report, the Medicare Trustees today announced that both the Medicare Hospital Trust Fund and the Supplementary Medical Insurance Trust Fund expenditures are growing faster than the rest of the economy. The Trustees report expenditures were $432 billion in 2007, or 3.2 percent of gross domestic product (GDP), and are projected to increase to nearly 11 percent of GDP in 75 years.

The Trustees report that Medicare’s Hospital Insurance (HI) Trust Fund will become insolvent earlier in 2019 than reported last year. HI expenditure growth is estimated to average 7.4 percent each year over the next 10 years, a higher rate than either Gross Domestic Product (GDP) or Consumer Price Index (CPI) growth. This year the HI Trust Fund will spend more than its income, and from 2009 through 2017, about $342 billion will need to be transferred from the Federal treasury to cover beneficiaries’ hospital insurance costs.***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention. You can read more on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Deficit Reduction Act of 2005 and Healthcare Planning for the Elderly

Alison Barnes (Professor of Law, Marquette University Law School) has recently published her article entitled Long Term Care in the Political Balance, 9 Marq. Elder's Advisor 1 (2007).

Here is an excerpt from her article:

The Deficit Reduction Act of 2005 continued the long history of squeezing off Medicaid eligibility for aged people with disabilities who are not destitute.*** The Medicaid eligibility rules seek to utilize savings to pay for nursing facility care and recover expenditures from the value of assets generally exempt during the Medicaid recipient's lifetime, primarily the home.***

As one student*** inquired***: Do you mean that if I set aside assets to cover five years of nursing facility care (at $5,000 per month on average nationwide, or $300,000) then the government will pay for my nursing home care? That generally is correct[.]***

For the great majority, however, that set-aside is impossible. The question becomes: How much savings is “too much” to reserve from payment for nursing home care, and does society wish to scrutinize why the elderly owner seeks to set it aside from his or her support? ***

DRA and long-term care for senior Americans with disabilities

Kim Dayton (Professor of Law, William Mitchell College of Law) has recently published her article entitled Reality Check: The DRA's Impact on Seniors with Disabilities and Their Caregivers, 9 Marq. Elder's Advisor 13 (2007).

Here is the conclusion to her article:

There is no question that this nation needs to look closely at the means by which long-term care for elders with disabilities-indeed, all heath care, for everyone-is financed. Many options for restructuring the financing of long-term care for the elderly are available-including adding a long-term care benefit to Medicare or following the leads of Japan and Germany in creating a separate social insurance program to provide long-term care for older Americans. These will require additional taxes and may involve some general cost-shifting back to consumers who use government-financed health care services. But such cost-shifting should impact everyone, not just the elderly and disabled.

The DRA's solution to a crisis (that at the moment is largely manufactured) entailing the shifting of additional burdens onto groups that already bear most of the tremendous economic and emotional burdens that long-term disabilities implicate should not be considered acceptable. Nor should taxpayers be forced to support the long-term care partnerships, which amount to government sponsored discrimination benefiting a small group of wealthy, non-disabled Americans. The asset-transfer and LTCP provisions of the DRA should be repealed while Congress seeks gender- and ability-neutral solutions to the nation's future financing of long-term care for the millions of seniors who will need it in the coming decades.

Terri Schiavo Analogue Recurs

According to Sean O'sullivan, Parents battle over life of brain-damaged daughter, delawareonline.com, Jan. 31, 2008:

In a case with parallels to the 2005 uproar over Terri Schiavo, a Newark father is fighting a court order that could allow the removal of a feeding tube and end the life of his brain-damaged daughter.***

According to court records, Lauren Marie Richardson, 23, is in a persistent vegetative state following a heroin overdose in August 2006. She was pregnant at the time and was kept alive at Christiana Hospital -- with feeding tubes and a breathing machine -- to allow her to give birth, which she successfully did in February 2007 to a healthy baby girl.

Late last week, a court awarded guardianship of Lauren Richardson to her mother, Edith Towers, who maintains her daughter did not wish to live this way and seeks to end artificial life support measures.***

Lauren Richardson, a Glasgow High School graduate, did not leave a "living will" stating her desires in such a situation, or use a mechanism in the Delaware law called an Advanced Health Care Directive, a simple form a person can fill out to make their end-of-life wishes clear.***

Special thanks to Alyssa A. DiRusso (Assistant Professor, Cumberland School of Law, Samford University) for bringing this article to my attention.

Increasing Elder Abuse Calls for Legislative Action

Jane A. Black (J.D. Candidate 2008, St. John's University School of Law) has recently published her Note entitled The Not-So-Golden Years: Power of Attorney, Elder Abuse, and Why Our Laws Are Failing a Vulnerable Population, 82 St. John's L. Rev. 289 (2008).

Here is the conclusion to her Note:

While the allegations of financial abuse and neglect involving Astor may never be proven, the Park Avenue socialite's story brings to the forefront one of the gravest legal issues affecting the elderly in the twenty-first century. The selection of who will hold one's power of attorney is, undoubtedly, one of the most significant decisions an older individual will make. Depending on the type of power granted, such an individual has the ability to thwart the elderly's desired disposition of money after death, or worse, infuse fear, helplessness, and deceit into the final years of an elderly person's life.

Without immediate action by lawmakers though, there is no indication that financial exploitation of the elderly will subside. Abuse is certain to swell as longevity increases, technology improves, and the lines of communication become easier to cross. As evidenced from the cases and statistics above, the day has passed where the American legal system can fail to recognize elder abuse as a widespread attack on the most vulnerable members of our population. To combat these abuses, federal and state legislatures need to enact uniform laws and sanctioning mechanisms to create a legal system with a hard stance against abuse of the elderly.

Michigan in Need of New Legislation for the Legally Incapacitated

Nicole E. Bergeron (J.D. 2006, Thomas M. Cooley Law School), has recently published her article entitled Resuscitating Elderly Wards in Michigan: Should a Legal Guardian Be Allowed To Execute a “Do-Not-Resuscitate” Order on a Legally Incapacitated Individual's Behalf?, 9 T.M. Cooley J. Prac. & Clinical L. 257 (2007).

Here is the conclusion to her article:

Michigan's legally incapacitated are in desperate need of legislation designed to protect them from the implementation of overly aggressive resuscitative procedures. Legislation should focus on the drafting of new procedural laws that are designed to adequately protect a legally incapacitated individual's right to refuse unwanted and overly aggressive medical treatment. As a model for reform, the legislature should look to California's Due Process in Competence Determinations Act. Using the procedural protections outlined in this act as a framework, the legislature should be able to draft legislation that adequately preserves an individual's right to refuse unwanted medical treatment. Legislation should also focus on reforming current guardianship laws so that the rights of family members and relatives are given adequate priority and protection. Given proper reform, legislation should further seek to allow for the signing of DNR's by guardians who are specifically authorized by the court to deal with the ward's end-of-life concerns. This goal can be accomplished by expanding the scope of Michigan's Do Not Resuscitate Procedures Act, and proposing legislation designed to uniformly regulate the implementation of DNR's in both traditional and non-traditional health care settings.

Medicaid Planning In Illinois

Kirsten Izatt (The Estate Planning Group of Wheaton, Illinois) has recently published her article entitled Medicaid Planning in Illinois: Are You Ready for the DRA?, 95 Ill. B.J. 589 (2007).

Here is a description of this article:

The federal Deficit Reduction Act of 2005 requires estate planners to devise new ways to protect the assets of clients who face long nursing-home stays.  Illinois hasn't implemented the law, but it will.  This article looks at what will and won't change when that happens.

Medicare Updates

On November 15, 2007, the U.S. Department of Health & Human Services issued a press release entitled 2008 Open Enrollment for Medicare Part D Prescription Drug Coverage and Medicare Advantage Plans Begins Today.

Some of the highlights of the release include the following:

Medicare beneficiaries will be able to begin making enrollment changes in their health and prescription drug coverage for 2008[.]***The Medicare annual Open Enrollment Period for prescription drug plan runs from Nov. 15 through Dec. 31, 2007. ***

[“]The most recent satisfaction rate stands at 86 percent; the estimated average premium is 40 percent lower than originally estimated and total estimated costs are running $188 billion below initial projections.  Part D is a program that is working well and is helping Medicare beneficiaries with their prescription drug costs.”***

Starting [November 15, 2007], www.medicare.gov also provides beneficiaries with the five-star ratings of the quality and performance of plans that offer Part C and Part D services.  The plan ratings are intended to help people with Medicare choose an MA plan, a Medicare Advantage Prescription Drug Plan (MA-PDP), or a stand-alone Prescription Drug Plan (PDP) by combining cost and coverage information with quality and performance information.*** Part D (prescription drug plans) plans are rated on criteria such as customer service and providing drug pricing information.***

Another focus for this year’s open enrollment period involves signing up beneficiaries eligible for extra help, known as the Low Income Subsidy (LIS), to pay for their drugs. By providing information and enrollment assistance, CMS will encourage them to apply for the extra help and enroll in Part D.  For those LIS-eligible Medicare beneficiaries who may not have enrolled in part D in the past, CMS has announced that it is once again waiving the fee for late enrollment to make it easier to get these individuals the extra help they need.***

Patients in a Vegetative State May Understand More than We Think

According to a recent study conducted by Adrian Owen, a young British neuroscientist, some patients in a vegetative state recognize their loved ones’ photographs, comprehend speech, and are able to perform complex mental tasks on command.

Here are more details on this issue from Jerome Groopman, Silent Minds, newyorker.com, Oct. 15, 2007.

Owen heard about a patient *** named Kate Bainbridge, a twenty-six-year-old schoolteacher who had become comatose after a flulike illness, and was eventually diagnosed as being in what neurologists call a vegetative state.***

Whenever pictures of Bainbridge’s family flashed on the screen, an area of her brain called the fusiform gyrus, which neuroscientists had identified as playing a central role in face recognition, lit up on the scan.***

The patients’ brains were scanned while they listened to a recording of simple sentences interspersed with meaningless “noise sounds.” The scans of some of the patients showed the same response to the sentences as scans of healthy volunteers[.]***

Owen’s final experiment was the most ambitious: a test to determine whether vegetative patients who seemed able to comprehend speech could also perform a complex mental task on command. He decided to ask them to imagine playing tennis.***

The woman had to be able to hear and understand Owen’s instructions, retrieve a memory of tennis—including a conception of forehand and backhand and how the ball and the racquet meet—and focus her attention for at least thirty seconds. To Owen’s astonishment, she passed the test.***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.

You can read more on this issue on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Protecting an elderly person from his/herself -- Not an easy task

In Of Principals and POAs: Protecting the Elderly from Themselves, 95 Ill. B.J. 580 (2007), Helen W. Gunnarsson discusses the problems which may arise when a "good" agent wants to protect an "unwilling" principal.

Here are some excerpts from this most interesting article:

Most lawyers know what it is to serve clients afflicted with dementia. If they don't, they surely know or have known a family member or friend who is such a client.

Lawyers can ameliorate some of the anguish that accompanies the onset and progression of dementia. They can help impaired individuals and concerned family members make wise decisions that will improve the remainder of the impaired individuals' lives and preserve more of their estates for their heirs or beneficiaries.

By itself, though, existing law may not be able to provide a perfect solution for the impaired person who's in the hazy no-man's-land between "sharp as a tack" and incompetent - perhaps sharp one day, or one minute, and incompetent the next. How effective an instrument can and should the law be for protecting someone like that from himself?

Through the use of a compelling hypothetical situation, Ms. Gunnarsson demonstrates the problems that arise and how the law is not well-suited to solving them.

When is a home for the aged too commercial for a tax exemption?

David A. Brennen  (Professor of Law, University of Georgia School of Law) has recently posted on SSRN his article entitled The Commerciality Doctrine as Applied to the Charitable Tax Exemption for Homes for the Aged - State and Local Perspectives.

Here is an abstract of his article:

This Essay examines the question of how state and local government officials should consider federal tax law principles, like the commerciality doctrine, when they challenge state and local property tax exemptions that rely, at least in part, on tax-exempt charitable status for federal income tax purposes. In particular, the Essay uses the example of Continuing Care Retirement Communities (CCRC's) to consider tax-exempt law's commerciality doctrine in an attempt to discern distinctions between “homes for the aged” that are “charitable” (and thus entitled to exemption) and those that are too commercial and, thus, not entitled to exemption. In fact, one might say that this issue of the tax exemption eligibility of CCRC's is a version of John Colombo's quandary about the commerciality doctrine in general - “when . . . commercial activity will be considered 'in furtherance of' an exempt purpose as opposed to simply 'primarily' operating a business.” Ideally, these distinctions between exempt and non-exempt homes for the aged should be helpful to state and local tax officials who, in the face of shrinking revenues and increasing expenses, seek to deny tax exempt status to “homes for the aged” that are charitable primarily because they look commercialized and do not necessarily serve the poor.

Statutory Surrogate Statutes Analyzed

Nina A. Kohn (Assistant Professor of Law, Syracuse University College of Law) and Jeremy A. Blumenthal (Assistant Professor of Law, Syracuse University College of Law) have recently posted their article on SSRN entitled Designating Health Care Decision-Makers for Patients Without Advance Directives: A Psychological Critique.

Here is the abstract of their article:

States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, our review of empirical research on surrogate decision-making challenges this justification. We find that default surrogate statutes do a reasonable job of capturing majority preferences for health care decision-making processes, but do not ensure that patients receive the treatment they would have selected for themselves if able. Rather, surrogates appointed under default surrogate statutes can be expected to frequently make treatment choices that are inconsistent with patient preferences. Nevertheless, in the absence of better alternatives, default surrogate statutes play an important role in the American health care system. We therefore urge states to consider certain statutory changes that would improve the ability of such statutes to effectuate patient wishes. We also identify several avenues for further empirical research that could help to improve the accuracy of surrogate decision-making.

HIPAA Update CLE

The National Constitution Center is sponsoring a live audio conference on October 17, 2007 entitled HIPAA Update: Top Privacy and Security Developments for 2008.

Here is a summary of the program:

Not complying with complex HIPAA privacy and security initiatives can lead to severe penalties and fines. Do you REALLY know what you must do to stay in compliance? Join us of a 60-minute audio conference where you and your colleagues will discover:

• Keys for preparing for the BIG compliance issues on the horizon
• Electronic health records: Evolving privacy & security standards
• HIPAA enforcement efforts; what you need to know
• Security concerns & breach reporting: Up to the minute news

Power of Attorney Abuse

I commend to your reading the extensive posting on Neil Hendershot's PA Elder, Estate & Fiduciary Law Blog entitled "Powers of Attorney" Investigated in Series.  He reviews a four part special investigative report by the Pittsburgh Post-Gazette focusing on powers of attorney -- specifically, the abuse that can occur in this powerful relationship by some agents who exercise their sweeping authority.

Financing Long-Term Care -- A Growing Problem

Richard L. Kaplan (Peer and Sarah Pedersen Professor of Law, University of Illinois College of Law) has recently posted on SSRN his article entitled Retirement Planning's Greatest Gap: Funding Long-Term Care.  The article also appears in Volume 11 of the Lewis and Clark Law Review.

Here is the abstract of his article:

This Article examines the major missing component of retirement planning - namely, how to finance the potentially explosive cost of long-term care. It begins by reviewing the wide array of long-term care options currently available, including home care, assisted living facilities, and nursing homes. The Article next examines the coverage for long-term care provided by the government health program for older American, Medicare, and private insurance policies that supplement that program. Finding such coverage woefully deficient, the Article then considers the governmental health care program for poor people of any age, Medicaid, and assesses that program's coverage of long-term care and its eligibility limitations as tightened by recently enacted legislation. The Article then turns to private long-term care insurance and analyzes its major components and the various pitfalls that prospective retirees encounter in purchasing such insurance. Finally, the Article critiques the federal government's major initiatives to encourage such insurance - namely, the tax deduction of premiums and coordination of certain long-term care insurance policies with the Medicaid program.

HIPAA -- Too Much of a Good Thing?

The Health Insurance Portability and Accountability Act is designed to protect the confidentiality of a patient's health care information.

However, there is growing evidence that HIPAA is often applied in a Draconian nature.

According to Jane Gross, Keeping Patients' Details Private, Even From Kin, NY Times, July 3, 2007:

[N]ew studies have found that some health care providers apply HIPAA regulations overzealously, leaving family members, caretakers, public health and law enforcement authorities stymied in their efforts to get information.

Experts say many providers do not understand the law, have not trained their staff members to apply it judiciously, or are fearful of the threat of fines and jail terms — although no penalty has been levied in four years.

A former student of mine reported that she could not obtain her own medical information because there was no HIPAA authorization on file.  To solve the problem, she signed a form giving herself authority to see her own records.  The hospital drone was happy and let her have access to her own records.

As a consequence, I always recommend that an estate planning client sign a HIPAA authorization giving access to whatever family members and friends the client would like to have access to his or her medical information.

Deficit Reduction Act of 2005 & Illinois Law

In Impending Regs Affect Planning for Clients Facing Long-Term Care, 95 Ill B.J. 66 (2007), Helen Gunnarsson explains how Illinois "is on track to issue new regulations that will make it harder for clients who are headed for nursing-home care to hang on to assets."  Her article details how "[e]lder law and estate-planning practitioners need to be prepared with new strategies for the new rules."

Lillian Glasser Decision

Earlier on this blog, I reported on the case of Lillian Glasser and the battle to control her and her $25 million fortune.  See here, here, here, here, here, and here.

On March 8, 2007, the Superior Court Of New Jersey, Chancery Division – Probate Part Middlesex County issued its opinion.

Here are some of the highlights of this lengthy (82 page) opinion:

• Lillian's daughter, Suzanne Mathews, must return approximately $20 million to Lillian.
• Lillian's earlier will which leaves her estate equally to her two children (Suzanne Mathews and Mark Glasser) remains effective.
• A purported later will which Lillian executed with Suzanne's assistance will be ineffective.
• Lillian is deemed incapacitated and Joseph Cantanese is appointed as her new guardian of the person and Neuberger Berman (a financial planning firm) as guardian of her estate.
• The judge severely criticized Suzanne's conduct determining that she breached fiduciary duties, exerted undue influence over Lillian, and was untruthful with the court.
• Although the judge determined that Mark acted in good faith to assist Lillian, the judge was critical of Mark's "take no prisoners" tactics and his "less than candid" testimony.

According to Zeke MacCormack, Daughter ordered to repay millions, San Antonio Express-News, March 15, 2007, Mark has "heard talk of an appeal."

Special thanks to James Woo (Davidson & Troilo, San Antonio, Texas) for being the first person to bring the Glasser opinion to my attention.

Woman in Persistent Vegetative State Awakens Briefly

Christa Killy has been in a persistent vegetative state for more than six years.

However, she recently awoke for about three days.  During this time period, she talked with friends and family, granted a media interview, and ate cake.

Unfortunately, she slipped back into her PVS but doctors say she could awaken again (she has been alert four times before but for much briefer periods).

See AP, Woman in vegetative state wakes for 3 days, March 9, 2007.

Home Care for the Elderly

With over 4 million Americans over the age of 85 and more expected as the baby boomers age, there is a tremendous increase in the need for long-term at home care.  Hiring a professional agency to supply this care can cost $150,000 or more per year.

Consequently, there is an increase in "gray market" care providers who work for substantially less money but who may be untrained, unskilled, and unsupervised.

See Jane Gross, New Options (and Risks) in Home Care for the Elderly, NY Times, March 1, 2007.

Texas "Transfer in 10 or Die" Rule Questioned

Under Texas law, medical professionals may end treatment of a terminally ill patient who cannot be transferred to another facility within 10 days.  Texas Health & Safety Code § 166.052.

Many individuals and organizations are now claiming that this time period is too short because it does not give family members enough time to find another facility.

On the other had, some health care professionals assert that although there may be reasons for extending the time period, the ruckus about the ten days is a "fund-raising gimmick" or "publicity stunt."

See Emily Ramshaw, Bills challenge care limits for terminal patients, Dallas Morning News, Feb. 15, 2007.

Special thanks to Joan Bui (Attorney, Dallas, Texas) for bringing this article to my attention.

Trustee’s Discretion to Provide for Support and Maintenance Creates Support Trust

The husband’s testamentary trust gives all income to his surviving spouse but allows the trustee to withhold income if he determines that the spouse has “adequate other income” and also allows the trustee to distribute principal to the spouse if he determines invasion necessary to provide for the spouse’s “proper support and maintenance.”  In In re Decision of Com’r of Human Services in Appeal of Flygare for Medical Assistance, 725 N.W.2d 114 (Minn. Ct. App. 2006), the court held that this language created a support trust rather than a discretionary trust and that the trust therefore was an available resource for determining the spouse’s eligibility for medical assistance.

District of Columbia enacts presumption of competency

District of Columbia law now provides that an individual is presumed competent to make legal, health-care, and all other decisions unless certified otherwise or deemed incapacitated or incompetent by a court.  Incapacity is not inferred from the fact that an individual is voluntarily or involuntarily hospitalized for mental illness or has mental retardation

The legislation took effect on December 21, 2006.

See 2006 D.C. Sess. Law Serv. Act 16-566.

HIPAA CLE

The National Constitution Center is sponsoring a live audio conference on March 1, 2007 entitled HIPAA Update: Top Ten Privacy and Security Developments for 2007. 

Here is a summary of the program:

You know that compliance is not an option, and by failing to comply with HIPAA regs, you risk civil enforcement, penalties and fines, and even criminal prosecution. Now that the dust has settled with the HIPAA Privacy and Security Rules, what are some of the remaining hot topics involving privacy and security? Join us for a 60-minute audio conference where you and your colleagues will discover:

• The biggest compliance challenges under HIPAA today
• The current status of HIPAA enforcement efforts
• Where health care entities should focus attention to protect privacy
• and security?
• And what should health care entities be anticipating on privacy and security in the years ahead

Pennsylvania Health Care Quality and Cost Initiative

For a review of Pennsylvania's attempt to address the quality and cost of health care services which would increase health care coverage to all its residents, see Neil E. Hendershot, PA Governor Unveils New Health Care Proposals, PA Elder, Estate & Fiduciary Law Blog, Jan. 19, 2007.

Website Focusing on Pennsylvania Medical Decisions Goes On-line

Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who authors the PA Elder, Estate & Fiduciary Law Blog, has just brought on-line PA HealthCare DecisionMaking which "focuses on individual & representative health care decision-making, including aging, medical, & "end-of-life" decisions, in Pennsylvania, after the enactment of Act 169 of 2006, effective January 29, 2007."

Neil explains that the website has four aspects:

• A complete, but unofficial statement of the new Chapter 54, of Title 20 of the PA Probate, Estates & Fiduciaries Code, section by section, with internal cross-references;
• Legal background information, including cases & statutes, regarding representative and end-of-life health care decision-making;
• Extensive Pennsylvania legislative background material, developed since 1998, leading to the enactment of Act 169 in 2006; and
• A "web portal", of sorts, that provides links to organizations, resources, articles, forms, and other information on the expansive, multi-disciplinary, aspects of personal health care decision-making.

More on Long-Term Care

Earlier on this blog, I reported on how the U.S. Department of Health and Human Services has recently placed the National Clearinghouse for Long-Term Care Information on-line.

A recent article also discusses planning techniques such as long-term care insurance, family care, and reverse mortgages.  See Sandra Block, If you're in your 50s, it's time to plan how you'll pay for long-term care, USA Today, Jan. 9, 2007.

National Clearinghouse for Long-Term Care Information

The U.S. Department of Health and Human Services has recently placed the National Clearinghouse for Long-Term Care Information on-line.  Here is an excerpt from the site's homepage:

This is a new web site developed by to provide information and resources to help you and your family plan for future long-term care (LTC) needs.

While no one likes to think about a time when they might need long-term care services such as help with basic daily activities like bathing, dressing or using the bathroom independently, about 60 percent of people over age 65 will require some long-term care services at some point in their lives. Planning is essential for you to be prepared.

This site provides a wide range of information and options to help you plan for future long-term care needs, but it can't tell you which ones will work best for you. Everyone's situation is different. Carefully review these options and your unique situation before making your planning decisions.

The National Clearinghouse for Long-Term Care Information is primarily intended as an information and planning resource for individuals who don't yet require long-term care, but it includes information on services and financing options that can be helpful to all individuals.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this website to my attention.

Bifocal Newsletter

The December 2006 issue of Bifocal, Newsletter of the ABA Commission on Law and Aging has been released.

This issue features:

• Model Approaches to Statewide Legal Assistance Systems
• The State of Veterans’ Fiduciary Programs: What Is Needed to Protect Our Nation’s Incapacitated Veterans?
• Funding Opportunity: The 2007 Partnerships in Law and Aging Program
• Profile of the NebraskaState Bar Elder Law Section
• New Resources: Elder Law Clinic Replication Manual and Elder Abuse Detection and Intervention:  A Collaborative Approach
• Lawyerly Conceits: “The Eulogy,” a Poem by Timothy J. Nolan
• Sally Crawford Ramm, chair of the National Association of Legal Services Developers, on Developing Legal Assistance Programs for Older Adults

Pennsylvania Enacts Advance Directive for Health Care Act

The following is from an e-mail message I received from Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog:

In Pennsylvania, on November 29th, Governor Rendell signed into law Senate Bill 628, which will take effect on January 29, 2007.

The Act changes the law of this Commonwealth on health care powers of attorney and living wills, reauthorizes out-of-hospital do-not-resuscitate orders, and -- for the first time -- authorizes actions by health care representatives selected by relationship to the patient. 

The Act replaces Chapter 54 of Title 20 to provide a statutory means for competent adults to control their health care by written instructions, or through health care agents or representatives and requested orders.  It also provides for execution and revocation of living wills and health care powers of attorney with designated health care agents, and authorizes selection and duties of health care representatives in the absence of an agent designation.

The final form of SB 628 can be found here in PDF format.

For additional information, see Neil's blog entry entitled Gov. Rendell Signs SB 628 into Law!, Nov. 29, 2006.

Living Old

PBS's Frontline program has prepared an excellent program entitled Living Old which provides "[a] powerful and intimate journey into the uncharted territory of Americans living longer than ever -- and what it means for them, their loved ones and our society."

With 35 million elderly people in America, "the old, old" -- those over 85 -- are now considered the fastest growing segment of the U.S. population. While medical advances have enabled an unprecedented number of Americans to live longer and healthier lives, this new longevity has also had unintended consequences. For millions of Americans, living longer also means serious chronic illness and a protracted physical decline that can require an immense amount of care, often for years and sometimes even decades. Yet just as the need for care is rising, the number of available caregivers is dwindling. With families more dispersed than ever and an overburdened healthcare system, many experts fear that we are on the threshold of a major crisis in care.

You may watch the entire program on-line at no charge.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this program to my attention.  Neil also has an excellent discussion of this topic on his blog entitled PBS Frontline Presents "Living Old."