Elder Law Prof Blog

Reductions in LiHeap leave many of Maine's elderly in danger

In sagging wood homes and aged trailers scattered across Washington County (ME), many of Maine's poorest and oldest shiver too much in the winter, eat far more biscuits and beans than meat and cannot afford the weekly bingo game at the V.F.W. hall. In this long-depressed “down east” region, where the wild blueberry patches have turned a brilliant crimson, thousands of elderly residents live on crushingly meager incomes. This winter promises to be especially chilling, with fuel oil prices rising and fuel assistance expected to decline. But many assume that others are worse off than themselves and are too proud to ask for assistance, according to groups that run meal programs and provide aid for heating and weatherizing.  “One of our biggest problems is convincing people to take help,” said Eleanor West, director of services for the Washington Hancock Community Agency, a federally chartered nonprofit group. “I tell them, ‘You worked hard all your life and paid taxes and are getting back a little of what you paid in.’” But in Washington County, the poverty rate among those 65 and older is nearly one in five and many more live only a little above the federal subsistence standard in 2007 of $10,200 for a single person and $13,690 for two.

Source/more:  NY Times, http://www.nytimes.com/2007/11/24/us/24maine.html?ex=1196917200&en=8c511a1a5f77e490&ei=5070&emc=eta1

Thanks to student Suzanne Guerin for the tip.

Nov. 2007 Issue of Bifocal now available

The November 2007 issue of BIFOCAL, Journal of the ABA Commission on Law and Aging is now available.

This issue features:

• A Survey of Assisted Living Facility Laws’ Incorporation of Provisions of the Fair Housing Act, by Matthew Bernt
• Alaska and Mississippi Adopt Emeritus Pro Bono Attorney Rules
• ABA Sponsors Mock Social Security Disability Hearing at the U.S. Capitol
• Profiles of the Newest Distinguished Members of the ABA Commission on Law and Aging
• Checklist for Emeritus Pro Bono Programs
• National Healthcare Decisions Day Set for April 16, 2006
• Deanna Clingan-Fischer Wins National Aging and Law Award
• NALC 2007 Highlights/Audiotapes and Podcasts from NALC Coming Soon!
• ABA Shows Solidarity with Pakistani Lawyers
  
  The ABA Commission on Law and Aging distributes BIFOCAL six times a year to elder bar section and committee officers and members, legal services providers, elder law and other private practitioners, judges, court staff, advocates, policymakers, law schools and elder law clinics, law libraries, and other professionals in the law and aging network.
  
  To request a copy of this edition or to subscribe, send an email to Trisha Bullock at [email protected]

Upcoming Conference: 2nd International Conference on Elder Abuse

2nd International Conference on Elder Abuse
Medical Aspects & Multidisciplinary Responses

February 11-12, 2008 (Ends at Noon)
Marriott Newport Beach Hotel & Spa | Orange County, CA

Presented by the University of California, Irvine School of Medicine, Program in Geriatrics

Get more info at http://www.elderabuseconference.org/

Senior set loves Wii!!

Six seniors at the Sedgebrook retirement community gathered in the lounge after dinner as the holiday season was getting under way last year. The residents at the center, about 20 miles north of Chicago, were an unlikely test audience for the season's hottest toys. The plan: determine which toys to give the grandchildren for the holidays. The assumption was that they'd give their grandchildren the toys they approved.  But it didn't quite turn out that way.  The Nintendo Wii was so popular that the residents clamored for their own. Today, all of the Erickson chain retirement communities in the US own at least one Wii.  Other retirement communities and municipal senior centers in recent months have followed, many using wellness grants and public funds to pay for the video-game system. Nintendo scrambled to tap this demographic.  Proponents say the Wii offers a welcome reprieve from a sedentary lifestyle, and boosts   hand-eye coordination among the over-60 set in a way that Bingo and Mahjong can't.  However, some find that when it comes to the Wii, which retails for about $250, money is less a problem than getting comfortable with the game. Many retirement communities that purchased the games are encouraging hesitant seniors with tournaments, trophies, and cash prizes. Some centers are placing their Wiis in high-traffic areas where seniors congregate, or for the bashful, behind a moveable privacy screen.

Source/more:  Christian Science Monitor, http://www.csmonitor.com/2007/1127/p01s05-ussc.html

Supremes hear 401(k) case

Although U.S. workers can invest money in a retirement fund sponsored by their employer, it is not clear whether they can sue to recover money lost because of mistakes by the fund's administrator. That issue came before the Supreme Court on Monday in a case that could shape the pension rights of 70 million employees.  The case began when James LaRue, a management consultant from Texas, said he lost $150,000 from his 401(k) retirement account when the plan's administrators ignored his instructions to move his money from a high-risk stock fund into government bonds in 2001. LaRue sued his employer, DeWolff, Boberg & Associates, but his claim was thrown out before a trial because, according to the lower courts, the federal law governing pensions and benefits does not allow individuals to sue over losses in their retirement accounts.  His case prompted the high court to reexamine the federal pension law in an era when employees -- not their employers -- are responsible for deciding where their retirement funds will be invested.  In 1974, Congress adopted federal rules for employer-sponsored pension funds and health benefits in the Employee Retirement Income Security Act. In the decades since, the high court has interpreted this worker-protection law to bar employees from suing their employers over benefit claims. For example, the court said employees and their families could not sue for damages if their healthcare plan refused to pay for a needed medical treatment.

Source/more:  LA Times, http://www.latimes.com/news/nationworld/nation/la-na-scotus27nov27,1,1269671.story?ctrack=2&cset=true

Read the briefs:  http://www.abanet.org/publiced/preview/briefs/dec07.shtml#larue

Medicare audits feared, detested...

Florida and New York hospital officials are leaping onto legislation sponsored by California lawmakers that would temporarily halt a controversial Medicare auditing program.  The commission-based program has been operating for more than two years on an experimental basis in the three states and is set to expand permanently to 20 more in March.  But because of the California experience – in which rehabilitation hospitals have been forced to surrender tens of millions of dollars for past services deemed by auditors to be medically unnecessary – Democratic Rep. Lois Capps of Santa Barbara and Republican Rep. Devin Nunes of Visalia recently introduced legislation that would place the program on a one-year moratorium to investigate the problems.  While New York and Florida have not had the depth of problems that have the California Hospital Association complaining, officials in those states said the program has not gone smoothly there, either.  The increasing anxiety has elevated the auditing program to a top agenda item of the American Hospital Association. Don May, the association's vice president for policy, said association lobbyists are actively pressing for passage of the Capps-Nunes bill. 

Source/more:  Sacramento Bee,  http://www.sacbee.com/111/story/520053.html

Unplugged out in paperback...get your copy now

Direct from the source (my friend Bill Colby):

Reviewers like it, and I hope you will, too.  Publishers Weekly says: "Few possess Colby's engaging style and judicious insights .  .   . Colby writes elegantly about end-of-life issues."  The Journal of Neurocritical Care calls the book "spellbinding." 

ORDER

At its heart, Unplugged is a book of stories -- some tragic, some remarkable, and all have helped shape our modern medical world.

    * The night of Nov. 3, 1959, when a doctor in Boston shocks a living patient with a defibrillator, and heart treatment changes forever

    * A determined nurse makes it through medical school, starts the first modern hospice in London, and begins a social revolution

    *  The tragedies of Nancy Cruzan and Terri Schiavo, which cause our whole country to stop and talk for awhile about how we die.

Unplugged has an important message for our clients, patients, friends and families.  I hope you will order it today, and share it widely. Thanks, and all the best.

Indictment returned in Brooke Astor case

Brooke Astor’s son and one of her former lawyers have been indicted on criminal charges stemming from the stewardship of her financial affairs and the handling of her will, according to people who have been briefed on the situation. Her son, Anthony D. Marshall, 83, and the lawyer, Francis X. Morrissey Jr., have been told to surrender to authorities on Tuesday morning, according to those briefed.  A Manhattan grand jury has been hearing evidence from witnesses since early last month, following an investigation by the district attorney’s office into the management of Mrs. Astor’s fortune by Mr. Marshall and Mr. Morrissey’s role in the signing of the third amendment to her will. The exact charges against the two men were not known late this afternoon. But in Mr. Marshall’s case, they are probably related to millions of dollars in cash, property and stocks that he obtained over the years in his role as steward of his mother’s finances. As for Mr. Morrissey, the charges are probably tied to the signature on an amendment to Mrs. Astor’s will that was made in March 2004. The possibility of forgery has been raised by a nationally known handwriting expert. The indictment marks the first time criminal charges have been filed in the legal battle surrounding Mrs. Astor’s fortune and well-being.

Source/more:  New York Times, http://www.nytimes.com/2007/11/27/nyregion/27astor.html

AARP report on aging in place in KY

Here's an excerpt:

Kentucky AARP Members want to Age in Place

As the population of Kentucky ages, many people will be dealing with the issue of
long-term care. In 2020, there will be nearly 5 million Kentuckians age 65 and older.
This influx of older residents will result in a greater need for long-term care options.
As this survey shows, AARP members age 55 and older in Kentucky want a choice in
where and how they receive long-term care, and they want to stay in their own homes
as they age. Members support the state putting additional funds into home- and
community-based services so that they have at-home options, even if this means the
state reduces funding for nursing homes. The State should consider transferring funds
from unused nursing home beds to home- and community-based care options.
● Eighty-five percent of members support increasing funds for services that help
people stay in their homes as they age. In addition, 87 percent support using
money that would otherwise go to nursing homes for home- and community-based
services. Over half say they would be more likely to vote for a candidate for office
who works to give people choices in their long-term care.
● Kentucky members want to age in their homes. Over nine in ten say it is
important for them to stay at home for as long as possible. Seventy-eight percent
say it is important for them to choose how and where they receive long-term care
services.
● Members are not confident of their ability to pay for long-term care in a
nursing home or with a home health aide. About half of members say that they
are not at all or not very confident that they could afford needed long-term care.

http://assets.aarp.org/rgcenter/il/ky%5Fltc%5F07.pdf

Public comment requested regarding "senior certifications"

Public comments are being requested - by December 9 - on a proposed  rule to regulate the use of senior-specific certifications and professional designations.  

http://www.nasaa.org/issues___answers/regulatory_activity/7515.cfm

Courtesy Kate Mewhinney

Australia's elderly population at a glance...

AUSTRALIAN INSTITUTE FOR WELFARE AND HEALTH REPORT: "Older Australia at a
glance (4th edition)," (November 2007, .pdf format, 224p.).

http://www.aihw.gov.au/publications/index.cfm/title/10402

ALI-ABA CLE on Elder Law--what you need to know

Elder Law: What You Need To Know
Meeting the Legal, Financial, and Social Challenges of Aging Clients

    * Cosponsored by the ABA Senior Lawyers Division

    * Thursday-Friday
    * January 17-18, 2008
    * Hyatt Regency Coral Gables
    * Coral, Gables

Get info here: http://www.ali-aba.o rg/index.cfm?fuseaction=courses.course&course_code=CN075

Did you know: Census resources on the elder population

Elderly (65+) Population (see also Older (55+) Population above)

   The BIG ONE:  65+ in the United States: 2005 (P23-209) [PDF 8.28M]   

Also: 

1. We the People: Aging in the United States (CENSR-19) [PDF 373k]      
2. The Older Foreign-Born Population in the United States: 2000 (P23-211)        
   • Report [PDF 587k]
   • Detailed Tables (PPL-151)            
3. Guide to Data on the Older Population in Census 2000 Summary Files 1-3
           HTML version (111k) | PDF version (485k)   
4. Guide to Data on the Older Population in Census 2000 Summary Files 1-4
           HTML version (146k) | PDF version (949k)       
5. An Aging World: 2001 (P95/01-1) [PDF 3M]       
6. Census 2000 Brief: The 65 Years         and Over Population: 2000 (C2KBR/01-10) [PDF 580k]   
7. Population and Ranking Tables of the Older Population for the United States, States, Puerto Rico, Places of 100,000 or More Population, and Counties (PHC-T-13)        
         
8. 1998 Population Estimates of People 65 Years and Over and 85 Years and Over by Region, and State               
9. Interagency Forum on Aging-Related Statistics
           AgingStats.Gov - Web Site of the Federal Interagency Forum on Aging-Related Statistics
10. Sixty-Five Plus in the United States        
    • Statistical Brief on Sixty-Five Plus in the United States
                  Select one of the versions below:             
      • HTML
      • PDF
               Current Population Report P23-190, 65+ in the United States       
11. Wallcharts:        
    • Aging in the United States -  Past, Present, Future Wallchart [PDF 5M]
    • Aging in the Americas into the XXI century
    • Global Aging into the 21st Century [PDF 33M]
                  PRINTED COPIES NO LONGER AVAILABLE      
12. We the American Elderly [PDF 235k]               
13. The Current Population Survey and other Census Bureau surveys collect data by age.  See the subjects (Education, Families, Marital Status and Living Arrangements, etc.) listed under "Population Topics" for additional sources of data by age.    
14. Centenarians in the United States: 1990 [PDF 1M]
15. Grandparents and Grandchildren       
16. Profiles of America’s Elderly - Presents results of the 1990 Census of Population and Housing related to  America’s elderly.
17. Housing of the Elderly -  Products available from the 1990 Census for the United States, all States, and the District of Columbia, and metropolitan statistical areas.

Toolkit for supporting safe staffing ratios in nursing homes

The Long Term Care Community Coalition has developed a toolkit for people to speak out to support safe staffing standards in nursing homes.  The toolkit includes sample letters, brief reports addressing the need for staffing standards and overcoming the challenges, a petition form, and more resources.

PLEASE HELP US GET THE WORD OUT BY LETTING YOUR MEMBERS AND CONSTITUENTS KNOW ABOUT THIS TOOLKIT AND ENCOURAGE THEM TO SPEAK OUT!  THE TOOLKIT CAN BE ACCESSED AT WWW.NURSINGHOME411.ORG. 

In order to improve conditions for nursing home residents and staff we must improve staffing levels.  Over 90% of nursing homes do not have sufficient staff to provide adequate care.  This means that both residents and workers suffer.  Congress is holding hearings now on nursing home quality.  According to today’s article in the NY Times article, “These are the first major hearings on nursing homes since the late 1980s; those led to the Nursing Home Reform Act of 1987.”  More hearings are expected in both the House and the Senate.  Now is the time for us to make a difference!!

WHAT YOU CAN DO:

Send  this message directly to your friends, colleagues, members of your organization, etc… and encourage them to speak out.  Use the toolkit to send a message or collect signatures on the petition.
Make copies of the attached poster and hang in your community – at the library; at your church, temple or mosque; etc… If you have a newsletter put in a notice about the toolkit and the need for people to speak out.

Center for Retirement Research offers hefty research grants

The Center for Retirement Research at Boston College announces the
2008 Steven H. Sandell Grant Program "Call for Proposals."  This annual
program is funded by the U.S. Social Security Administration. The Sandell
Program provides the opportunity for junior scholars from a wide variety
of academic disciplines and senior scholars working in a new area to
pursue projects on retirement income issues. Up to eight grants of 45,000
dollars will be awarded for one-year projects. The submission deadline for
grant proposals is January 31, 2008. Grant award recipients will be
announced in March 2008.  For more information see:

http://crr.bc.edu/index.php?option=com_content&task=view&id=122&Itemid=23

Most beneficiaries will pay more for Part D meds

From the Center for Medicare Advocacy, via ABA Senior Lawyers Division newsletter: An August 13, 2007 press release from the Centers for Medicare & Medicaid Services (CMS) declared victory for Medicare Part D, claiming that the average premium of $25 was nearly forty percent (40%) lower than had been predicted when the drug benefit was first enacted into law. The CMS Press Release, while accurate, does not tell the entire story. In 2008 most beneficiaries will be paying substantially more for their drug coverage, and many will be getting less coverage.

The full article is available at: http://www.medicareadvocacy.org/PartD_07_11.01.PtDChanges.htm.

OIG study finds that 56% of Part D drugs are generics

US DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF THE INSPECTOR
    GENERAL REPORT: "Generic Drug Utilization in the Medicare Part D
    Program" (OEI-05-07-00130, November 2007, .pdf format, 30p.).

Abstract:

We found that Part D achieved a high level of generic drug use during the
first two quarters of 2006.  Under Part D, generic drugs were dispensed 88
percent of the time when generic substitutes were available.  However, 37
percent of prescriptions were for drugs that have no generic substitutes,
limiting opportunities to dispense generics.  Overall, 56 percent of all
drugs dispensed were generic drugs.

Our findings indicate that variation in the rate of single-source drug
prescribing primarily accounted for variation in generic drug utilization.
Therefore, to achieve increases in generic drug utilization, Part D plans
may realize gains by encouraging the prescribing of multisource drugs,
which have generic equivalents.  However, such efforts should be
undertaken with caution to ensure that beneficiaries maintain access to
appropriate treatment.

In response to our draft report, CMS generally concurred with our
findings.  CMS noted differences between our and CMSs calculation of
generic drug utilization and suggested that this may be because of its
inclusion of multisource brand name drugs in its measure of generic drug
utilization.  We did not include multisource brand name drug utilization
data in our measure of generic drug utilization because these data are
inconsistent with the definition of generic drugs under Part D.

http://www.oig.hhs.gov/oei/reports/oei-05-07-00130.pdf

Medicare open enrollment begins today; caveat enrollee!!

Medicare Part D enrollment begins today for 2008; enrollees need to pay close attention to what they're signing up for.  Many plans have changed formularies; premiums will increase by as much as

A selection of stories on Part D enrollment:

Enrollment period opens for Medicare Part D

If you're satisfied with your current plan, don't be too smug. Staying        put may cost you next year.  ''
"Medicare drug plans are a moving target," said Robert Hayes, president of the Medicare Rights Center, a consumer advocacy group. "You shouldn't assume your coverage will remain the same in 2008 if you stay in your present plan."  A drug plan that worked well this year may be more expensive or cover different medications next year, he said.  Seniors and people with disabilities now receiving the drug benefit should have received a letter from their plans outlining any changes for 2008. If they haven't been notified, they should call their plans at once, Mr. Hayes said.

Dallas Morning News, http://www.dallasnews.com/sharedcontent/dws/bus/stories/111507dnbusenroll.250a291.html

Seniors urged to research their drug plans                                                                           

Seniors who struggled to choose from about 50 plans two years ago when the program started have mostly stayed put. But even Medicare officials say sticking with the same plan may not be the best financial or health decision.  "You should take this time and get a checkup for your plan and make sure that you're in the right plan," says Kerry Weems, acting administrator of the Centers for Medicare and Medicaid Services.  Dozens of seniors took the opportunity to do just that Wednesday at the Holiday Park Senior Center in Wheaton, Md. It was one of several stops Weems and other Medicare officials made as part of a press tour in a giant Medicare bus.  Souad Shammas showed up to find out if there might be a better drug plan for her, "because I have exhausted all my money with AARP and now I am paying from my pocket 100 percent."

http://www.npr.org/templates/story/story.php?storyId=16308485

Medicare Part D choices in 2008 cover 151 plans

Advocates urge beneficiaries enrolled in the federal insurance program covering drug expenses to compare the numerous plans because costs and coverage are changing.  Starting today, about 740,000 older or disabled Minnesotans can enroll in one of 151 competing Medicare Part D drug insurance plans for 2008.  About 80 percent of them are enrolled this year in a Part D plan or have equivalent coverage from former employers or the Veterans Administration.  But with costs and coverage changing as the drug benefit enters its third year, those with a 2007 plan should shop around during the open enrollment period ending Dec. 31, say Medicare officials and advocates for beneficiaries.  In addition, the 60,000 Minnesotans enrolled in Medicare Advantage fee-for-service plans -- which combine health care and drug coverage -- will find their insurance not honored by HealthPartners or Park Nicollet Health Services health providers next year. Park Nicollet sent notices about the change to 2,200 patients last week. Other providers are considering a similar move. The 34 fee-for-service plans available for 2008 allow a patient to see any doctor who accepts the plan.

Minneapolis Star-Tribune, http://www.startribune.com/462/story/1551613.html

GAO says "1000s" of Medicaid providers are tax cheats

A report by the GAO concludes (and is titled) Thousands of Medicaid Providers Abuse the Federal Tax System

Here's s summary:  Over 30,000 Medicaid providers, about 5 percent of those paid in fiscal year 2006, had over $1 billion of unpaid federal taxes. These 30,000 providers were identified from a nonrepresentative selection of providers from seven states: California, Colorado, Florida, Maryland, New York, Pennsylvania, and Texas. This $1 billion estimate is likely understated because some Medicaid providers have understated their income or not filed their tax returns.

We selected 25 Medicaid providers with high federal tax debt as case studies for more in-depth investigation of the extent and nature of abuse and criminal activity. For all 25 cases we found abusive and related criminal activity, including failure to remit individual income taxes or payroll taxes to IRS. Rather than fulfill their role as ‘‘trustees’’ of federal payroll tax funds and forward them to IRS, these providers diverted the money for other purposes. Willful failure to remit payroll taxes is a felony under U.S. law. Individuals associated with some of these providers diverted the payroll tax money for their own benefit or to help fund their businesses. Many of these individuals accumulated substantial assets, including million-dollar houses and luxury vehicles, while failing to pay their federal taxes. In addition, some case studies involved businesses that were sanctioned for substandard care of their patients. Despite their abusive and criminal activity, these 25 providers received Medicaid payments ranging from about $100,000 to about $39 million in fiscal year 2006.

Desperate to know more?  Read the full report at
http://www.gao.gov/new.items/d0817.pdf?source=ra

Meanwhile, estate recovery assures that middles class Medicaid beneficiaries give the state every last bit of what they have...what stinks here? 

Canadian boomers plan to volunteer "even more" when they retire

The Bank of Montreal has just released one that shows 34% of Canadians aged 45 to 60 volunteer and a further 38% of boomers who do not yet volunteer say they plan to when they retire.  BMO says it started looking into what boomers were planning to do in retirement in October 2005, and found 16% expected to spend “a great deal of time” in retirement doing non-profit and charitable work while 72% said they expected to spend “some time” doing it. The likelihood of spending “a great deal of time” doing charitable work increased with age.Tomorrow, November 15^th, has been designated National Philanthropy Day – right smack in the middle of National Retirement Planning Week. The way BMO explains it, while the boomers have been until recently focused on working and raising their families, Canadian boomers are now setting their sights to helping others. Perhaps the good example of Bill Gates is starting to rub off. 

Source:  National Post, http://communities.canada.com/financialpost/blogs/wealthyboomer/archive/

2007/11/14/a-third-of-boomers-volunteer-and-more-plan-to-when-they-retire.aspx

And did you know this is National Retirement Planning Week?  I didn't...until five minutes ago!
Who makes up the National Retirement Planning Coalition and why aren't they doing a better job of promoting this even?