Elder Law Prof Blog

Recent scholarship

Fleming, Jennifer Rae.  Student article.  The blurred line between nursing homes & assisted living facilities:  how limited Medicaid funding of assisted living facilities can save tax dollars while improving the quality of life of the elderly.  15 U. Miami Bus. L. Rev. 245-271 (2007).

 

Medicare "hotline" frustrates callers, hang ups are common

Callers to the U.S. government's hotline for the Medicare health program for senior citizens are increasingly frustrated by the service, according to a poll released on Thursday.  The Department of Health and Human Services' inspector general reported 71 percent of those who completed calls to the 1-800-MEDICARE line were satisfied in 2007, a drop of 13 percentage points from 2004 data.  Medicare added a prescription drug benefit to its health plan in 2006, which led to much confusion as recipients faced hundreds of private and public choices. Caller volume spiked 68 percent to 49 million calls in 2006 compared with 2004, the study found.  The Office of Inspector General, which audits and investigates the agency, recommended reviewing the interactive voice response system to determine if more staff should be hired to man the phone lines.  Callers were more likely to hang up in frustration than in 2004, the survey said. About 21 percent of callers hung up before getting an answer in the survey, up from 12 percent in 2004, the report found.

Source/more:  Reuters Health, http://www.reutershealth.com/archive/2007/09/28/eline/links/20070928elin018.html

British Medical Association opposes allowing doctor's to "opt out" of treatment

The British Medical Association heavily criticised draft GMC guidance that would allow doctors to opt out of any procedure for ethical reasons.  The plans would give doctors "a licence to discriminate" and should be strictly limited to certain procedures such as abortion, the BMA warned.  But such precise restrictions would not work in practice, the GMC said.  It is currently widely accepted that doctors can "conscientiously object" to certain procedures associated with life and death issues, such as withdrawing life-prolonging treatment, the BMA said.

Source/more:  BBC, http://news.bbc.co.uk/2/hi/health/7018025.stm

HHS awards grants to provide legal services to seniors

The Health and Human Services' (HHS) Administration on Aging (AoA) awarded more than $700,000 to seven states to develop innovative ways to enhance access to low-cost legal services for seniors who are most in need. Awards of approximately $100,000 each were made to Connecticut , Kentucky , Florida , Michigan , Nevada , New Hampshire , and Pennsylvania to expand the “Model Approaches to Statewide Legal Systems” Program established by the AoA earlier in 2007.

http://www.aoa.gov/press/pr/2007/September/9_27b_07.asp

Arizona to establish Office of Aging

Arizona Gov. Janet Napolitano has opened a state Office of Aging to coordinate the efforts of various agencies dealing with issues facing the state's fast-growing population of seniors.  "Aging Arizonans have the right to live independently and with dignity, and we want to help them do that," said Melanie Starns, tapped by Napolitano to direct the office.  Until now, the governor's office had relied solely on an advisory council to understand and respond to the state's changing demographics. "As we look forward, we have to take a proactive approach," Starns said.  The four-person office already is working on ways to protect seniors from identity theft and to ensure access to dental care, Starns said.  Its chief role is coordinating the work of 14 state agencies that deal with various issues facing the elderly. It also will deal with private agencies around Arizona that work directly with seniors.

Source/more:  Arizona Republic, http://www.azcentral.com/arizonarepublic/local/articles/0927aging0927.html

Pope's death becomes source of controversy over Vatican pronouncement on end-of-life treatments

The debate over the Vatican’s opposition to euthanasia is being played out here over an especially public and delicate case: the death of Pope John Paul II.  Over the past week, the Vatican and an Italian doctor have sparred over the doctor’s accusation that John Paul should have been fitted earlier with a feeding tube. The doctor, Lina Pavanelli, an anesthesiologist, argued in a magazine article, then again this week in public, that the failure to do so before March 30, 2005, when the Vatican announced that John Paul had been fitted with a nasal feeding tube, deprived him of necessary care and thus violated church teachings on euthanasia. He died, at 84, on April 2 that year.  In an article in the magazine, Micromega, Dr. Pavanelli argued, “When the patient knowingly refuses a life-saving therapy, his action together with the remissive or omissive behavior of doctors, must be considered euthanasia, or more precisely, assisted suicide.”  She did not examine the pope or have access to his medical records.  So far, the Vatican has not presented a detailed response, but on Wednesday church officials quietly acknowledged that John Paul actually had the tube inserted several days before the March 30 announcement. His doctor, Renato Buzzonetti, told the newspaper La Repubblica last week that “his treatment was never interrupted,” though Dr. Pavanelli countered that John Paul should have been fitted with a more efficient abdominal feeding tube.

Source/more:  New York Times, http://www.nytimes.com/2007/09/28/world/europe/28pope.html

Canada: Older couples don't always agree about how to spend retirement funds

Many older couples are approaching retirement with very different ideas about what those golden years will be like, even about whether they want to retire and how much time they want to spend together once they do, says a bank report, titled We Need to Talk.  A lot of couples age 50 and above simply don't agree with each other on important aspects of retirement because they don't discuss the issue enough, according to the Scotiabank study, based on results of a survey by pollster TNS Facts.  "We have seen many retirement plans hit a road bump almost immediately out of the gate because the shared vision that the couples thought they had wasn't as shared as it could be," said Barry LaValley, a retirement planning expert, working with ScotiaMcLeod. "Part of the problem is that couples don't often talk about the change in the relationship dynamic and how their day-to-day life will change in retirement."

Source and more:  Montreal Gazette, http://www.canada.com/montrealgazette/news/business/story.html?id=2cc6db52-d8a1-4d29-9510-0e0e5fc3063d

CMS announces 2008 Part C and Part D plans ("landscapes", as it likes to call them)CMS Announces 2008 Part D Plan Options…

HHS Secretary Mike Leavitt announced today that more than 90 percent of Medicare beneficiaries in a stand-alone Part D prescription drug plan (PDP) will have access to at least one plan in 2008 with premiums lower than they are paying this year. The open enrollment period for 2008 begins Nov. 15^th and ends Dec. 31^st and in every state, beneficiaries will have access to at least one prescription drug plan with premiums of less than $20 a month, and a choice of at least five plans with premiums of less than $25 a month.  Please click here for a list of state-by-state fact sheets. 

Seventeen organizations will offer stand-alone prescription drug plans nationwide (in all 50 states plus  Washington DC)  and beneficiaries will continue to have choices of plans with zero deductibles and other enhanced benefits, such as reduced deductibles and lower cost sharing.  There also are options that cover generic drugs in the coverage gap for as low as $28.70 a month; nationwide, beneficiaries in any state can obtain such a plan for under $50 a month. The national average monthly premium for the basic Medicare drug benefit in 2008 is projected to be roughly $25.  Please click here for a list of 2008 plan options, containing plan names and limited plan cost information.  The enhanced plan finder tool will be available on the web by mid-October.

 

Get the skinny for your state at

http://www.cms.hhs.gov/PrescriptionDrugCovGenIn/

Not elder law: scientists can map the woolly mammoth genome...

The thick coats of shaggy hair that kept woolly mammoths warm on the icy tundra have yielded enough intact DNA to sequence their genomes, a new study reports.  In addition to helping scientists figure out why mammoths went extinct, the feat could pave the way for better and faster genetic studies of other ancient animals.  Scientists obtained ten complete mitochondrial genomes using tufts of hair from mammoths that died between 50,000 and 12,000 years ago in what is now northern Siberia, a region of Russia.  Mitochondrial DNA is passed from mother to offspring, so it helps scientists sort out lineages, determine genetic diversity, and address other population mysteries.  Before this study, only seven mitochondrial genomes from extinct animals had been created: four from ancient birds, two from mammoths, and one from the mammoth's elephant-like relative the mastodon.  The DNA used to create such genomes usually comes from bone or muscle, which degrade quickly and are easily contaminated with genetic material from other sources such as bacteria.  The process of finding enough uncontaminated DNA to piece together a complete genome from bone or muscle can take several years.

Source/more:  http://news.nationalgeographic.com/news/2007/09/070927-mammoth-hair.html

Can Jurassic Park be far behind???

New CRS report on family caregiver legislation

Family Caregiving to the Older Population: Legislation Enacted in the 109th Congress and Proposals in the 110th Congress
September 07, 2007
Download Locations: Open CRS (User submitted)

Family caregivers fulfill the majority of the need for long-term care provided to older persons with chronic disabilities in the United States. Among those older Americans receiving long-term care, the overwhelming majority receive some form of informal, or unpaid, care primarily provided by spouses and adult children. Family caregiving encompasses a wide range of activities, including assistance with personal care needs, medication management, and coordination with other health-care professionals. For many, caregiving is a rewarding experience; however, for some, caregiving can lead to emotional and physical strain, as well as financial hardship. As demand for caregiving to the older population is likely to increase, certain demographic factors may limit the number of family caregivers and their capacity to provide care. Although the federal government has established programs and services for family caregivers, policy makers have identified the need for additional federal benefits. This report briefly describes legislation enacted in the 109th Congress and proposals introduced in the 110th Congress that directly assist family caregivers (H.R. 1032, H.R. 1161, H.R. 1369, H.R. 1542, H.R. 1560, H.R. 1807, H.R. 1871, H.R. 1911, H.R. 2244, H.R. 2392, H.R. 3043, S. 614, S. 897, S. 898, S.910, S. 1340, S. 1681). This report will be updated upon significant legislative activity.

MY slackers featured in US News and World Report!!

I opened up US News and World Report's Oct. 1 issue on "Best Places to Retire" and, lo and behold, my former home of Lawrence KS is listed in the top ten.  More important, my favorite seniors/philosophers--the Prima Tazza Slackers--are actually pictured in the article! I spent many an hour with The Slackers drinking coffee and musing about the sad state of the nation, and I miss them all.  Ok, they are not all "seniors", but they are getting close.  Chapter 32 of my treatise (addressing capacity issues, or course) is dedicated to them.   Read the article here:  http://www.usnews.com/usnews/biztech/articles/070920/20retire.lawrence.htm

Party on, DK, Keith, and Gary!

EPA features website on environmental health and aging

The United States Environmental Protection Agency (EPA) Aging Initiative website contains a wealth of information about the Agency’s efforts to protect the environmental health of older persons.

On the website (http://www.epa.gov/aging/index.htm) you can learn more about the Aging Initiative’s ongoing work and the development of a National Agenda for the Environment and the Aging.

 The website also contains a number of fact sheets including:

1. Age Healthier, Breathe Easier
2. Building Healthy Communities for Active Aging
3. Diabetes and Environmental Hazards
4. Effective Control of Household Pests
5. Environmental Hazards Weigh Heavy on the Heart
6. “It’s Too Darn Hot” – Planning for Excessive Heat
7. Water Works

And the following posters can be ordered from the website:

1. It's Never Too Late To be SunWise
2. Beat the Heat
3. Age Healthier, Breathe Easier

Courtesy Ellen Klem of the ABA's Commission on Law and Aging

Census data show smaller perecentage of "oldest old" reside in nursing homes

Despite the graying of the nation, the percentage of elderly living in nursing homes has declined, according to Census data released today. The downturn reflects the improved health of seniors and more choices of care for the elderly.  About 7.4% of Americans aged 75 and older lived in nursing homes in 2006, compared with 8.1% in 2000 and 10.2% in 1990.  "The upper-income white population has other options than nursing homes," says William Frey, demographer at the Brookings Institution. "They're moving to assisted living or their well-off, baby boomer children are taking care of them in other ways." At-home care and assisted-living facilities have been a fast-growing segment of elder care in the past decade, says Elise Bolda, director of Community Partnerships for Older Adults, a Robert Wood Johnson Foundation program that helps communities develop long-term care and services for the elderly.  More than 1.8 million people live in nursing homes.  The percentage of the oldest age group of seniors living in nursing homes has been dropping. Less than 16% of the 85-plus population was in such facilities in 2006, according to the Census. In 1985, more than 21% in that age group lived in nursing homes, according to the National Nursing Home Survey, a government study.  This is good news, given this is the age group most likely to need the assistance and the fastest-growing group in our population," Bolda says.  The Census data on people who live in "group quarters" — including nursing homes, college dormitories and prisons — provide the first detailed profile of those populations since the 1980 Census.

Source/more:  USA Today, http://www.usatoday.com/printedition/news/20070927/1a_bottomstrip27_dom.art.htm

Full report:

http://www.census.gov/Press-Release/www/releases/archives/american_community_survey_acs/010709.html

Nursing home chains--in it for the money?

The New York Times reports:

Habana Health Care Center, a 150-bed nursing home in Tampa, Fla., was struggling when a group of large private investment firms purchased it and 48 other nursing homes in 2002. Alice Garcia, with her granddaughter Jacqualynn Hewitt in 1995. Mrs. Garcia, who had Alzheimer’s disease, died in 2003 after a bedsore  became infected at Habana Health Care Center in Tampa, Fla.  The facility’s managers quickly cut costs. Within months, the number of clinical registered nurses at the home was half what it had been a year earlier, records collected by the Centers for Medicare and Medicaid Services indicate. Budgets for nursing supplies, resident activities and other services also fell, according to Florida’s Agency for Health Care Administration.  The investors and operators were soon earning millions of dollars a year from their 49 homes.  Residents fared less well. Over three years, 15 at Habana died from what their families contend was negligent care in lawsuits filed in state court. Regulators repeatedly warned the home that staff levels were below mandatory minimums. When regulators visited, they found malfunctioning fire doors, unhygienic kitchens and a resident using a leg brace that was broken.  “They’ve created a hellhole,” said Vivian Hewitt, who sued Habana in 2004 when her mother died after a large bedsore became infected by feces.

Sidebar:  The Times examined more than 1,200 nursing homes purchased by large private investment groups since 2000, and more than 14,000 other homes. The analysis compared investor-owned homes against national averages in multiple categories, including complaints received by regulators, health and safety violations cited by regulators, fines levied by state and federal authorities, the performance of homes as reported in a national database known as the Minimum Data Set Repository and the performance of homes as reported in the Online Survey, Certification and Reporting database.

Read the rest:  http://www.nytimes.com/2007/09/23/business/23nursing.html
Thanks to Richard Kaplan for the heads up.

CRS Report--Income and Poverty of the Aged

September 24, 2007

Download Locations: Open CRS (User submitted)

Older Americans are an economically diverse group. In 2006, the median income of individuals aged 65 and older was $16,890, but incomes varied widely around this average. Twenty-three percent of Americans 65 or older had incomes of less than $10,000 in 2006, while 12% had incomes of $50,000 or more. As Congress considers reforms to Social Security and the laws governing pensions and retirement savings plans, it may be helpful to examine how changes to one income source would affect each of the others, and thus the total income of older Americans Older persons receive income from a variety of sources, including earnings, pensions, personal savings, and public programs such as Social Security and Supplemental Security Income. Using data from the March 2007 Current Population Survey, this report describes the number of elderly receiving income from each of these sources and the extent to which income from each source is either concentrated at the high end or low end of the income distribution or is evenly distributed. Retirement benefits from Social Security and pensions are the most common sources of income among the aged. In 2006, Social Security paid benefits to 86% of Americans aged 65 and older. Social Security is also the largest single source of income among the aged. Sixty-eight percent of Social Security beneficiaries aged 65 or older receive more than half of their income from Social Security. For 39% of elderly recipients, Social Security contributes more than 90% of their income, and for one-quarter of recipients, it is their only source of income. In 2006, 35% of people aged 65 and older received income from a private or public pension. Among people aged 65 and older who reported income from a government pension, the median annual amount was $14,400. Among recipients of private pensions, the median amount received in 2006 was just $7,200. Many Americans prepare for retirement by saving and investing some of their income while they are working. Of the 36.0 million Americans aged 65 or older who were living in households in 2006, 19.4 million (54%) received income from assets, such as interest, dividends, rent, and royalties. Most received small amounts of income from the assets they owned. Of all individuals aged 65 or older who received income from assets in 2006, half received less than $1,685. Earnings from work continue to be an important source of income for older Americans, especially those under age 70. Although there was a trend toward earlier retirement from about 1960 to 1985, over the past 20 years more Americans have continued to work at older ages. In 2006, median earnings of individuals aged 55-61 who worked were $37,000, while the median earnings of workers aged 62-64 were $30,000. Among workers 65 and older, median earnings were $19,000. Poverty among those aged 65 and older has fallen from one in three older persons in 1960 to less than one in ten today. Although the overall rate of poverty is relatively low, it remains high for women, minorities, the less-educated, and people over age 80. This report will be updated annually.

Senior centers as financial abusers?

Via the Prevent Elder Abuse Blog: 
Can a senior center incur civil liability for elder financial abuse if it permits its facility to be used by a presenter who then financially abuses attendees?   The answer may be yes, at least in California, according to San Francisco attorney Steven Riess, who contends that:

“By permitting an abuser to use its facilities for a presentation, a senior center is increasingly likely to be named as a co-defendant in an elder financial abuse lawsuit based upon direct, vicarious, and joint enterprise theories of liability.

A memorandum containing his supporting legal analysis was recently sent to city attorneys in several Santa Clara County cities, shortly after which they instructed local centers to deny access to suspect commercial enterprises. The Riess memo was also cited by the Parks and Recreation Department of the City of Red Bluff in adopting new guidelines for the use of public centers by commercial enterprises. 

The memo describes how senior centers have unknowingly facilitated abusers in their efforts to exploit elders. Trust mills and unscrupulous annuity agents, reverse-mortgage brokers, and others claim that their “free seminars” provide seniors with valuable educational information and materials relating to estate planning, Medi-Cal eligibility, and other topics.

Read the rest here.

Financial advisors have some 'splainin to do...

Some financial advisors who sold long-term care insurance to clients may have some explaining to do. For the first time,  Genworth Financial Inc.  (GNW), the largest provider of individual long-term care insurance, or LTCI, has said it will raise premiums for existing customers. Genworth, which said previously that it projected premiums would remain static for life, filed in all 50 states last month for premium increases of 8% to 12% on most of its policies.   For advisors who sold the policies and didn't warn clients of future premium increases, the news "can certainly put an advisor in an uncomfortable situation, " says Jason Abosch, an associate at FranklinMorris.  Advisors like Abosch say advisors who sell LTCI products should be warning clients that the policies' pricing is unpredictable and more than likely to rise again, regardless of what insurers routinely say. Advisors who don't provide such warnings can risk losing clients' trust when insurers like Genworth do in fact raise premiums.  Genworth's move raises fears of a return to the darker days of the past 15 years, when many insurers raised premiums rapidly; some went further, selling off policies and exiting the business altogether.

Source/more:  http://money.cnn.com/news/newsfeeds/articles/djf500/200709251248DOWJONESDJONLINE000523_FORTUNE5.htm

Elder Law Advisory (not to be confused with Elders Advisor) seeks submissions

Thomson/West is currently seeking lead article authors for 2008 for its newsletter, the Elder Law Advisory. This monthly newsletter is sent to subscribers in print form and is placed on Westlaw in electronic form. Every issue of Elder Law Advisory features a lead article that discusses timely issues related to elder law and recent case summaries. Recent lead articles have covered continuing care retirement communities, nursing home disaster preparedness regulations, and Medicaid transfer penalty hardship waivers. The lead articles are typically between 15,000 and 25,000 characters (approximately six to ten pages, double spaced). The articles must be original and previously unpublished and Thomson/West must hold all copyrights. The Elder Law Advisory is a great opportunity to publish a “hot topic” article and establish yourself as a leader in the elder law practice area. If you are interested in exploring the opportunity of becoming a lead article author, please contact Kara Hiller, Attorney Editor of the Elder Law Advisory, at [email protected] or (585)231-6097.

KFF announces Barbara Jordan Fellowships

The Henry J. Kaiser Family Foundation is accepting applications for the 2008 Barbara Jordan Health Policy Scholars Program. This opportunity is for college seniors and recent college graduates who have a strong interest in addressing racial and ethnic health disparities, or who are themselves a member of a population that is adversely affected by racial and ethnic health disparities. The application deadline is 5:00pm ET on December 14, 2007.              

During their nine-week experience, the Scholars work in congressional offices in Washington, D.C., obtaining first-hand experience in the policy-making process. They participate in seminars and site visits to enhance their practical knowledge of health care issues and gain first-hand knowledge of the federal legislative process. Each Scholar also writes and presents a health policy research paper in one of the following areas: Medicaid and the uninsured, Medicare, or HIV/AIDS.

More info at: 

http://www.kff.org/minorityhealth/bjscholars/index.cfm

New webcasts from AARP

AARP FACT SHEET, PRIME TIME RADIO:

A. "Hispanics Age 65 and Older: Sources of Retirement Income in 2005," by
Ke Bin Wu (September 2007, HTML and .pdf format, 2p.).

http://www.aarp.org/research/assistance/lowincome/fs135_hisp_retire.html

B. The following Prime Time Radio shows (RealPlayer format, running times,
between 23 and 30 minutes) have been added to the PTR site:

Secret Lives of Women over 50 (Sep. 18, 2007),

The Wisdom of the Ages (Sep. 18, 2007).

http://radioprimetime.org/