Elder Law Prof Blog

Night of the Living Will

The University of Hawaii Elder Law Program (UHELP) at the William S. Richardson School of Law will hold its annual NIGHT OF THE LIVING WILL. Professor James Pietsch will provide brief remarks about “the death of the living will” upon the enactment of Hawai'i’s Uniform Health Care Decisions Act in 1999 and how the “living will” was replaced by Advance Health Care Directives.

Attendees will then be afforded the opportunity to execute an advance directive, including individual instructions and a durable power of attorney for health care decisions.

For more information call 956-6544 or just come to Room 254 on the Second Floor of the Law School located at 2515 Dole Street.

More Information
Lenora Lee, 956-6544, [email protected]

Article: Facilitated Psychiatric Advance Directives: A Randomized Trial

Facilitated Psychiatric Advance Directives: A Randomized Trial of an Intervention to Foster Advance Treatment Planning Among Persons with Severe Mental Illness
Jeffrey W. Swanson, Ph.D., Marvin S. Swartz, M.D., Eric B. Elbogen, Ph.D., Richard A. Van Dorn, Ph.D., Joelle Ferron, M.S.W., H. Ryan Wagner, Ph.D., Barbara J. McCauley, M.A. and Mimi Kim, Ph.D.

American Journal of Psychiatry 163:1943-1951, November 2006
© 2006 American Psychiatric Association

Abstract:  Studies show a high potential demand for psychiatric advance directives but low completion rates. The authors conducted a randomized study of a structured, manualized intervention to facilitate completion of psychiatric advance directives. METHOD: A total of 469 patients with severe mental illness were randomly assigned to a facilitated psychiatric advance directive session or a control group that received written information about psychiatric advance directives and referral to resources in the public mental health system. Completion of an advance directive, its structure and content, and its short-term effects on working alliance and treatment satisfaction were recorded. RESULTS: Sixty-one percent of participants in the facilitated session completed an advance directive or authorized a proxy decision maker, compared with only 3% of control group participants. Psychiatrists rated the advance directives as highly consistent with standards of community practice. Most participants used the advance directive to refuse some medications and to express preferences for admission to specific hospitals and not others, although none used an advance directive to refuse all treatment. At 1-month follow-up, participants in the facilitated session had a greater working alliance with their clinicians and were more likely than those in the control group to report receiving the mental health services they believed they needed. CONCLUSIONS: The facilitation session is an effective method of helping patients complete psychiatric advance directives and ensuring that the documents contain useful information about patients’ treatment preferences. Achieving the promise of psychiatric advance directives may require system-level policies to embed facilitation of these instruments in usual-care care settings.                 

Article on DRA citizenship documentation requirement as implemented

Jacob Press, COMMENT: POOR LAW: THE DEFICIT REDUCTION ACT'S CITIZENSHIP DOCUMENTATION
REQUIREMENT FOR MEDICAID ELIGIBILITY, 8 U. Pa. J. Const. L. 1033 (2006)

SUMMARY:

Included in the DRA is a new requirement that federal Medicaid funding must be denied to individuals who claim U.S. citizenship but are unable to produce acceptable documentation. ... One may properly infer that other states share Oregon's view that citizenship fraud is a non-phenomenon: they share the burden of Medicaid costs with the federal government, and they are free to impose more burdensome documentation requirements than the federally mandated minimum, but only four have chosen to do so. ... A Minimal Rational Basis Review of Section 6036 ... The government argued that the statute was rationally related to the goal of minimizing fraud: households with unrelated members were more likely than others to contain individuals who misrepresented their income or voluntarily remained poor, and such households were also relatively unstable, making abuses particularly difficult to detect. ... With this provision, the government has limited Medicaid eligibility to the class of U.S. citizens who are not only indigent, but can prove their citizenship by producing a birth certificate. ...

Not elder law: World's oldest Scotch up for grabs...

A 150-year-old bottle of whisky, possibly the oldest in existence, is set to go under the hammer for thousands of pounds.  Experts say the pale gold spirit is drinkable and could even taste better than when it was bottled.  It is estimated to go for between £5,000 and £10,000, although experts say intense competition could push up the price.  Although nobody knows the precise date, the whisky was bottled by distillers Glenavon, which records show existed for just two years in 1851 and 1852, making the nectar at least a century and a half old.  Part of a family collection in Ireland, its female owner has entered the bottle into the 29 November auction of fine wine, port and spirits at Bonhams in London.  It is understood to be the first time in history the olive-green glass bottle has been offered at auction.  The label reads: "Glenmavon, Special Liqueur Whisky Bottled by the Distillers." The bottle is slightly smaller than the familiar 75cl vessels used today.  Competition at the auction is set to be fierce, with collectors jostling with bidders such as pub owners hoping to own the oldest bottle of whisky in the world, say Bonhams.  Bonhams consultant and world authority on whisky Charles MacLean, said the appearance of the whisky suggested it could even taste better than when it was bottled, but said he hoped it would never be tasted.

Read more in UK Life Style Extra.

Canada: NS nursing home fees go up $1/day

Via the Canada Press:

The bill for most of Nova Scotia's 4,000 nursing home clients is going up by a dollar a day.  The provincial Health Department says beginning Nov. 1 the standard accommodation charge for a nursing home will increase to $75.50 per day from $74.50.  Health Minister Chris d'Entremont says the increase follows a promise to review operational costs and to adjust fees up or down as necessary.

The department will also adjust two income areas to reflect increases made to Ottawa's old age security guaranteed income supplement.  Single seniors will be able to keep 15 per cent of their income or $2,556, whichever is greater, before paying accommodation charges -- a $102 increase in the minimum retained income amount.

Meanwhile, couples who can't pay the standard accommodation charges will be able to keep $15,045 per year -- a $209 increase in the spousal income threshold amount.

Nova Scotia's budget for long-term care in 2006-07 is about $326.9 million.

Ed:  That's an increase of $30/month.  In contrast, the average bill for nursing home care in the US went up $210/month from 2005 and 2006, according to the 2006 Met Life Survey of Nursing Home and Home Cre Costs.  And in the US, nursing home residents get to keep as little as $40 (!) of income  (not 15%) for their personal needs, to cover things like clothing, reading material, toiletries, etc.--if they receive any public assistance to pay for their care.

Racial disparities persist in Medicare programs

Via the Washington Post:

Racial minorities are less likely to undergo major surgeries at the hospitals where those operations are done best, and black patients at Medicare HMOs fare worse than whites on several health measures regardless of plan quality, according to studies being released today.

The two studies in today's issue of the Journal of the American Medical Association, plus a third showing that black women are less likely than their white counterparts to survive breast cancer, add to the voluminous evidence that the U.S. health-care system works differently for minorities than for whites despite years of efforts to erase racial disparities.  Studies have demonstrated that blacks and other minorities are far less likely than whites to receive many types of care, such as appendectomies, heart bypass surgery, or basic tests and drugs for heart disease and diabetes. Minorities on average are more prone to illness, have more complications and recover more slowly. They also are more likely to die from their illnesses, and to die younger. But while the persistent disparities are well-documented, the causes remain the focus of research and debate. One explanation is that minorities tend to be poorer and less educated, with less access to care. And they tend to live in places where doctors and hospitals provide lower quality care than elsewhere. Others suspect cultural or biological differences play a role, and there is a long-running debate about whether subtle racism infects the health-care system.

The JAMA Studies are accessible here:
JAMA. 2006;296:1935.
FULL TEXT | PDF

A message from CMA and FairMedicare.org

As the next open enrollment period for Medicare Part D approaches, Medicare agency officials say that 2007 Medicare Part D plan options will pose little problem and little change for enrollees. This is not the case. It's time we told the Administration and Congress to tell the truth about Medicare Part D.

Not concerned about enrollment because there are more options this year?
Be ready to work. Analysts say that the variety in Part D plan benefit structures makes it harder to compare plans and increases the difficulty of making an informed and meaningful decision.

Not concerned because costs will go down as plans compete for customers? Be ready to shop. The cost of the lowest price plan has increased in virtually every state, and in some states the cost has more than doubled. The lowest monthly premium for coverage beyond the basic package is almost $15 more per month than the "average" monthly premium amount of $24.

Not concerned because your plan worked for you last year? Be ready to change. Part D plans may change their formularies (list of covered drugs), tiers, utilization management tools, exceptions and appeals processes, and other aspects of their Part D plans, so even beneficiaries who were satisfied with their plan in 2006 need to review their options for 2007.

The facts aren't being presented to you. Support fair and accurate information. Support a single prescription drug benefit in the traditional Medicare program by sending a letter to your government officials.

Not elder law: world's oldest video game champ dies

Doris Self, Q*Bert player extraordinaire and competitive gamer, passed away from injuries sustained in an automobile accident earlier this month in Plantation, Florida.  Doris first gained notoriety in 1983 when she achieved a world record score of 1,112,300 points on the classic arcade game Q*Bert during Twin Galaxies' 1983 Video Game Masters Tournament, an event that was conducted for the Guinness Book of World Records. She was 58 years old then, the oldest person up to that time to capture a video game world title.Doris eventually lost her title of Q*Bert champion in 1985, but later dedicated her free time to smashing that new record, often playing until 3 AM to one day retake her crown.

Doris Self was the Matriarch of the video game world.  She was a major star in the burgeoning video game industry, the senior member of a growing cadre of gaming celebrities who represent the modern electronic era, which, some say, has grown to nearly $35 billion in annual gross income.

And, according to the Twin Galaxies' Official Video Game & Pinball Book of World Records, Doris was the oldest person to actively pursue video game world records, competing against gamers one-quarter her age.

Doris Self was 81.

Source:  Twin Galaxies.com

Tennessee Medicaid wants special rights to take homes through estate recovery

To foot the bill for Mary and Lawrence Henkel's nursing home care, her children sold everything their parents owned except for the Donelson home the couple had lived in since 1967."That was my father's dying wish — to hold onto the house, live in it, take care of it," said Nashville resident Judy Clifford, 66, one of three Henkel children. "That's what he told me, and he gave the house to me."

Now TennCare wants to sell the home to help recoup the roughly $288,000 that the state says it paid to take care of Mary Henkel in the nursing home before she died in February 2003 at the age of 81. Her husband had passed away years earlier.  The Henkel children, who value the home at $110,000, aren't alone.

They're among families across the state being asked to give up the family home as TennCare redoubles its efforts to recoup some of the roughly $1 billion a year that the state pays for nursing home and other long-term care. State officials say they're merely doing what is required by the federal government. And they point out that Tennessee isn't nearly as aggressive as some other states in recouping the money spent on long-term care.  It's a common practice for TennCare, the state's expand-ed Medicaid program, to go after the family homes of nursing home patients who have passed away.

Generally, by the time a nursing home or long-term-care recipient gets on TennCare, the patient's family has spent down all of the family assets, except for the home. The state is stepping up its efforts to get properties on at least two fronts. In April, TennCare hired an Atlanta-based outside consulting firm to help find properties that deceased long-term-care recipients passed on to their heirs without going through probate. And when it does find the property, it's going to force open an estate.  Under Tennessee law, the property can pass to the heirs without going through a probate court. But if TennCare finds out about the property, it can petition the court to force open an estate, which is what happened in the Henkel case [even though the statute of limitations had run on its time to enforce its claims]. The Tenncare Bureau also is looking to the state's highest courts to extend the time that it has to petition a court to get the property.  State law says all creditors have 12 months to file a claim on an estate....

Read more here.

Ed:  Get ready, this is only the tip of the iceburg.  Middle class elderly who are unfortunate enough to need long term car can forget about leaving anything of value to their children--including things like the farm that has been in the family for 150 years or the home in which their children were raised.  That's what estate recovery is all about.  Thank the Republican Congress, the long term care insurance industry, and Democrats who haven't been paying

More dirt on long term care insurance

To avoid becoming a financial burden to her children and grandchildren, Vera Smith bought long-term-care insurance. Like a growing number of Americans, the 87-year-old retiree saw it as a sensible way to cover caregiving costs not included in Medicare and conventional health insurance.

But nearly two years ago, Smith's insurer stopped paying benefits, contending that she violated the policy's terms by moving in with her daughter after she became too frail to take care of herself. That forced Veray Smith, the daughter, to quit her supervisory job and sell her mother's south Los Angeles house so she could afford to stay home with her.

"I'm the full-time caregiver now. It's hard," said Veray, who along with her mother has sued the insurer for bad faith. The insurer, Penn Treaty Network America Insurance Corp., declined to comment.

Consumer advocates and insurance regulators say that lawsuits and complaints like the Smiths' are likely to mushroom in coming years as more Baby Boomers and their ailing parents make claims on long-term-care insurance.

Sales of such policies grew by 65 percent between 2000 and 2004, but actual and projected payouts have caused a shakeout that could leave some policyholders with huge medical bills worried that insurers can't or won't pay. Some insurers who underestimated their potential obligations have sharply hiked their premiums or abandoned the market altogether.

Read more in the Chicago Tribune.

Problems with organ-donation contractor

From the LA Times via UPI:

The United Network for Organ Sharing, which oversees the U.S. system for organ transplants, often does not detect or act on problems, a report says.The Los Angeles Times said it found that, in instances of high organ failure and death rates, UNOS routinely keeps quiet about findings of investigations, leaving patients and families in the dark.The Times conducted its own investigation of the little known agency.  The newspaper said UNOS has had to deal with a rising number of life-threatening lapses at facilities it oversees over the past year. The Times said after it uncovered failures at two centers in California, both programs suddenly closed.  The Times said it often takes a year or more for UNOS to take action when increasing failures occur. Also, UNOS officials have been missing signs of trouble, including transplant center statistics on its own Web site, the newspaper said.  UNOS, headquartered in Richmond, Va., receives $2 million from the federal government and about $23 million in fees from transplant centers annually.

Read more in the LA Times.

 

The truth about long term care insurance

Los Angeles Times:  The Los Angeles Times on Saturday examined how consumer advocates and state insurance regulators expect lawsuits "to mushroom in the coming years as more baby boomers and their ailing parents make claims on long-term care insurance." Sales of long-term health insurance policies increased by 65% between 2000 and 2004. However, according to the Times, "actual and projected payouts have already caused a shakeout that could leave some policyholders with huge bills worried that insurers can't or won't pay," and some "insurers who underestimated their potential obligations have sharply hiked their premiums or abandoned the market." According to attorneys, long-term care insurers have denied claims for a number of reasons, such as "inadequate documentation from seniors too sick or distracted to be diligent record keepers" and some have "rescinded policies, saying the individual didn't fully disclose a pre-existing medical condition on his or her application," the Times reports.  Sandy Praeger, the insurance commissioner of Kansas and vice president of the National Association of Insurance Commissioners, said that increased sales of long-term care insurance policies place "pressure on us as regulators to ensure that policies live up to their promise to pay" (Selvin, Los Angeles Times, 10/14).

Ed:  Long term care insurance isn't available to those who need it--underwriting restictions make it almost impossible to buy this product if there's a perceptible chance that you will actually need long term care.  The DRA's "Long Term Care Partnership" program is nothing more than a cash cow for the industry--it doesn't require insurers to sell a policy to particular persons--indeed, it sets no standards at all on the industry with regard to who gets the benefits of the program.  The solution to the long term care problems we'll be facing in the next twenty year?  A long term care benefit in Medicare, financed by a small additional payroll tax on middle aged and older wage earners.  You read me right!  Politicians, pay attention.  The future you save is your own--and your kids'.

The truth about long term care insurance

Los Angeles Times:  The Los Angeles Times on Saturday examined how consumer advocates and state insurance regulators expect lawsuits "to mushroom in the coming years as more baby boomers and their ailing parents make claims on long-term care insurance." Sales of long-term health insurance policies increased by 65% between 2000 and 2004. However, according to the Times, "actual and projected payouts have already caused a shakeout that could leave some policyholders with huge bills worried that insurers can't or won't pay," and some "insurers who underestimated their potential obligations have sharply hiked their premiums or abandoned the market." According to attorneys, long-term care insurers have denied claims for a number of reasons, such as "inadequate documentation from seniors too sick or distracted to be diligent record keepers" and some have "rescinded policies, saying the individual didn't fully disclose a pre-existing medical condition on his or her application," the Times reports.  Sandy Praeger, the insurance commissioner of Kansas and vice president of the National Association of Insurance Commissioners, said that increased sales of long-term care insurance policies place "pressure on us as regulators to ensure that policies live up to their promise to pay" (Selvin, Los Angeles Times, 10/14).

Ed:  Long term care insurance isn't available to those who need it--underwriting restictions make it almost impossible to buy this product if there's a perceptible chance that you will actually need long term care.  The DRA's "Long Term Care Partnership" program is nothing more than a cash cow for the industry--it doesn't require insurers to sell a policy to particular persons--indeed, it sets no standards at all on the industry with regard to who gets the benefits of the program.  The solution to the long term care problems we'll be facing in the next twenty year?  A long term care benefit in Medicare, financed by a small additional payroll tax on middle aged and older wage earners.  You read me right!  Politicians, pay attention.  The future you save is your own--and your kids'.

Prof. Moore (Kentucky) on SS Reform

Professor Kathryn Moore, Everett H. Metcalf, Jr. Professor of Law at the University of Kentucky, has recently published "Social Security Reform in 2005 and Beyond," in the NYU Review of Employee Benefits and Executive Compensation 2006, at 8-1 to -31.  The article begins by analyzing three of the most politically salient proposals for reform made in 2005.  It then explains why Social Security reform failed in 2005 despite the administration's efforts to amend the system to include private accounts.  The article concludes with a discussion of the future prospects for reform.

Five Wishes Initiative...in 20 languages

Via PRNewswire:

In an effort to help eliminate language barriers to end-of-life decision-making for individuals
within ethnically and culturally diverse communities nationwide, a collaboration of health care organizations including United Health Foundation, Aging with Dignity, the American Hospital Association and the National Hospice and Palliative Care Organization is distributing translated copies of the Five Wishes advance care directive.

Aging with Dignity's Five Wishes has been translated into Chinese (traditional and simplified), Arabic, Haitian Creole, Portuguese, Somali, Hmong, Korean, French, Polish, Russian, Vietnamese, Albanian, Bengali, Hindi, Urdu, Spanish, Japanese, Gujarati and Croatian. Through funding support of the United Health Foundation's Evercare Hospice Foundation, 100,000 language-specific versions will be provided free of charge to individuals and community organizations, and a CD with samples of the document will be sent to hospitals and hospices to assist them in caring for their patients and understanding their wishes.

In addition, the organizations are launching a Five Wishes outreach effort in 38 states. These statewide programs, tailored to the unique needs of each state and its communities, will be launched over the next six months.  This outreach is in response to the increasing complexity of end-of-life medical care decisions and the expanding number of people who require assistance in communicating their wishes in languages other than English. In 38 states, Five Wishes is recognized as a standard for assisting individuals and their families to work through their choices for end-of-life care and communicate those choices to caregivers.

SS COLA is 3.3% for next year

Monthly Social Security and Supplemental Security Income benefits for more than 53 million Americans will increase 3.3 percent in 2007, the Social Security Administration announced today.

Social Security and Supplemental Security Income benefits increase automatically each year based on the rise in the Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), from the third quarter of the prior year to the corresponding period of the current year.  This year's increase in the CPI-W was 3.3 percent.
   
The 3.3 percent Cost-of-Living Adjustment (COLA) will begin with benefits that nearly 49 million Social Security beneficiaries receive in January 2007.  Increased payments to more than 7 million Supplemental Security Income beneficiaries will begin on December 29.

Some other changes that take effect in January of each year are based on the increase in average wages.  Based on that increase, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $97,500 from $94,200.  Of the estimated 163 million workers who will pay Social Security taxes in 2007, about 11 million will pay higher taxes as a result of the increase in the taxable maximum in 2007.

GET THE FACT SHEET:  http://ssa.gov/pressoffice/factsheets/colafacts2007.htm

Information about Medicare changes for 2007 can be  found at www.cms.hhs.gov

GLBT elders actually mentioned in WHCoA report!

The long-awaited Final Report of the 2005 White House Conference on Aging (WHCoA), released by the Administration on Aging, marks a milestone in the fight for the rights of lesbian, gay, bisexual and transgender (LGBT) elders. Months of intensive organizing, including the Task Force-convened Make Room for All diversity summit last December — a counterpoint to the WHCoA — and town hall meetings held around the country have paid off in the explicit inclusion of LGBT elders in the report.

Resolution 34, for example, includes the following implementation strategy: “Expand the definition of minority populations to include — gays, lesbians, bisexuals and transgenders [sic] and seniors with disabilities, and increase federal funding to NIH, CDC, Title 3 and other federal agencies to reduce health disparities and promote health promotion programming for all minority populations.”

“We refuse to sit on the sidelines and watch as the needs of our community go ignored,” said Amber Hollibaugh (pictured), a Task Force senior strategist and the nation’s premier specialist on LGBT aging issues. “Our community’s inclusion in this final report reflects this unwavering principle.”

Source:  National Gay and Lesbian Task Force, http://www.thetaskforce.org/

Widower of gay Congressman won't get pension

When same-sex marriage became legal in Massachusetts, among those who tied the knot were former Rep. Gerry Studds and Dean Hara.  But getting married didn't protect them under federal law: Hara has learned he is not eligible for any portion of Studds' estimated annual $114,337 pension following his partner's death last week. The 1996 federal Defense of Marriage Act blocks the federal government from recognizing the 2004 marriage between Studds and Hara or other same-sex couples.  Studds voted against the act, which was passed July 12, 1996, by a vote of 342-67, according to the House Clerk's office. Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, said the death of Studds may illuminate an inequity Congress enacted in "an era of fear and trepidation of gay marriage" when it appeared Hawaii might allow same-sex marriage.

"This is maybe a moment of education for Congress," he said. "Now they have a death in the congressional family of one of their distinguished members whose spouse is being treated differently than any of their spouses."  Peter Graves, a spokesman for U.S. Office of Personnel Management, which administers the congressional pension program, said same-sex partners are not recognized as spouses for any marriage-related benefits.He said Studds is the first case of its kind as far as the office could determine. "Our office could not think of a similar situation having occurred," he said.

Source:  CNN.com

AZ Supreme Court published book for elders and families

Within the week, the Arizona Supreme Court will publish a free law book for seniors and their adult children.  The book instructs on how to prevent and battle elder abuse, deal with Social Security issues, trusts, funeral planning and senior driver's license issues, among other things.  All Maricopa County courts and most Walgreens pharmacies in the state soon will carry the 16-page book. Several Arizona chapters of the AARP are endorsing the publication.
The Arizona Supreme Court modeled its guide after a widely popular senior law guide from California.  Advice in the book is specifically tailored for Arizona law.  Additional copies of the book may be obtained by contacting Nancy Swetnam of the Arizona Supreme Court at (602) 452-3362.

Source: AZ Central.com, http://www.azcentral.com/community/westvalley/articles/1018gl-nwvsenior18Z20.html

Ed:  Everything you need to know about elder law in 16 pages!  And to think I've been using a 700 page casebook and a 600 page statutory supplement!

New Website: National Resource Center for Psychiatric Advance Directives

The National Resource Center for Psychiatric Advance Directives has started a Web site, www.nrc-pad.org, providing state-by-state PAD information and downloadable forms.

A PAD is prepared when a patient is lucid. "The benefit is that the patient feels heard," said Dr. Marvin Swartz, co-director of the center. "The patient feels empowered."

The center was developed by Duke University Medical Center and the Bazelon Center for Mental Health Law.

PADs are intended for people with a history of severe and persistent mental illness such as schizophrenia or bipolar disorder -- about 3 percent of the population.

Read more in the Chicago Sun Times.