Elder Law Prof Blog

Military Personnel and Veterans

Do you cover anything on military or veterans' programs in your classes? If so, you might want to take a look at the Department of Defense Office of Warrior Care Policy Warrior Care Blog. The website has a number of resources, including latest news, information on benefits and disability evaluations.  The quarterly newsletter for caregivers, family members and care coordinators, The Continuum, can also be accessed from the website.

Becky Morgan

Elder Bullies

We hear a lot about "school yard bullies", cyber-bullies and now, elder bullies (do mean kids grow up and be mean old people?) Even the thought of a "mean old bully" destroys our mental image of the sweet grandmother or kindly granddad stereotype of yesteryear.

Some might consider this to be peer pressure, but it may be something much more serious than that.  Back in March of 2012, AARP ran a story about Older Adults Can Be Bullies, Too  noting that the bullying can occur just about anywhere elders gather-senior centers, ALFs, independent housing, nursing homes, etc. The story quotes Dr. Robin Bonifas from Arizona State U. that 10-20% of those living in senior housing are victims of bullying.  The article extrapolates that figure nationally and notes that many instances (name-calling, bossiness, arguments or even physical contact) are unreported.

Marsha Frankel did a webinar on Combating Social Bullying Among Older Adults that is available on YouTube and runs slightly over an hour.  As part of World Elder Abuse Awareness Day 2013, Bristol Elder Services and the Southeastern Alliance for Elders hosted an Elder Bullying Conference, a clip of which is  available on YouTube.

Social Work Today ran an article by Kate Jackson on  Older Adult Bullying---How Social Workers Can Help Establish Zero Tolerance, discussing a three-prong strategy by social workers. Retirement Living website included an article on the topic on its website; the article includes cites to four articles on the topic.  If you just do an internet search for "senior bully" or similar search terms, you might be surprised at the number of articles your search retrieves. Dr. Bonifas (mentioned above)  has done a fair amount of work on this topic, and you can find cites to articles where she's been interviewed and even a podcast or two of her talking on the topic.  If you cover this topic, two points for discussion with your students: remedies for the victims and whether bullying is covered by a state's elder abuse statute.

Want to add this topic to your course? Take heart-we have given you a good start with the links to resources in this post. Let us know if you  cover it and if so, how it goes.

Becky Morgan

Same-Sex Couples and Federal Benefits-Another Update

On August 27th, I posted an update on same-sex couples and federal benefits. Here are two more updates as the IRS issued a revenue ruling and CMS sent a memo to Medicare Advantage Organizations.

First--Medicare Advantage. On August 29th, 2013, CMS issued an "action" memo, titled Impact of United States v. Windsor on Skilled Nursing Facility Benefits for Medicare Advantage Enrollees--Immediate Action Required. This memo directs that Medicare Advantage organizations include skilled nursing facility (SNF) services for those same-sex spouses residing in a SNF if the organization would cover those services for heterosexual spouses. The memo discusses the circumstances under which a Medicare Advantage organization must provide SNF care for a Medicare Advantage member, reviews section 3 of DOMA and explains that CMS has determined that it is an error to exclude same-sex spouses from the term spouse.

The memo goes on to address the domicile question, providing that the key is the state where the  marriage took place rather than domicile of the married couple. The memo concludes that the Medicare Advantage organizations are immediately required to make this change to the coverage of  SNF services. See 42 C.F.R. 422.133(b) and Medicare Managed Care Manual, 4.10.9.

Now, for the IRS...

Also on August 29th, 2013, the IRS published two items: Revenue Ruling 2013-17 (effective date September 16, 2013) and a companion Frequently Asked Questions (FAQ), Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law. The Revenue Ruling runs 15 pages and covers three issues concerning federal taxes: (1) whether the words spouse, husband or wife include those same-sex spouses legally married in a state recognizing same-sex marriage and whether the word marriage includes same-sex marriages; (2) domicile; and (3) whether civil unions, domestic partnerships or other arrangements are included.

The revenue ruling (did I mention it was 15 pages long) is quite detailed and provides clear justifications for the Service's conclusions on the three issues. After noting that there are more than 200 references to spouses in the Code and the Treasury regs, the IRS determined, for federal taxes, that a same-sex spouse is included when spouse, husband or wife is used and same-sex marriage is included when the word marriage is used. (see the Rev. Ruling at 4-9).

As to marital status and domicile, the revenue ruling discusses significant issues that would arise by using domicile and thus the rule the Service will use is the state of the marriage rather than domicile. (Rev. Ruling at 9-12). However, the Service declined to include domestic partnerships, civil unions, and other recognized relationships as a marriage or individuals in them as spouses, husbands or wives, regardless of whether the couples are same sex or opposite sex. (Rev. Ruling at 12).

The FAQ answers 19 questions (#19 being whether the IRS will issue further guidance on how Windsor will impact retirement arrangements-short answer--yes). The other 18 questions cover the gamut from rules, examples and the effective date of the ruling for retirement plans (September 16, 2013); to filing status and the conditions under which they apply; to the dependent child deduction; to adoption; to employer health coverage and taxes; etc. I've quoted FAQ #1 here:

Q.1 When are individuals of the same sex lawfully married for federal tax purposes?

A.1  For federal tax purposes, the IRS looks to state or foreign law to determine whether individuals are married.  The IRS has a general rule recognizing a marriage of same-sex spouses that was validly entered into in a domestic or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex even if the married couple resides in a domestic or foreign jurisdiction that does not recognize the validity of same-sex marriages.

Consider the impact of Revenue Ruling beyond taxes.  According to a blog post from Mary Agnes Carey on the Kaiser Health News Blog, IRS Ruling on Same-Sex Couples Has Implications for Health Law, a same-sex couple's income will be considered for ACA's expanded Medicaid eligibility as well as any subsidies. The post illustrates that individuals need to carefully consider how this Revenue Ruling will affect them.

Said it before, saying it again...stay tuned-we will keep you posted with further updates.

Becky Morgan

Less Use of Antipsychotic Drugs in Nursing Homes

CMS  issued a press release on August 27th that announced Nursing Home Compare's updated data (July) showed a drop in the use of antipsychotic drugs by nursing homes. According to the press release, facilities are using "more patient-centered treatment for dementia and other behavioral health care." This is a follow up to the "National Partnership to Improve Dementia Care" that CMS started in 2012, with a goal  of a 15% reduction in the amount of antipsychotics being used by December 31, 2013. The press release provides the following statistics:

"The national prevalence of antipsychotic use in long stay nursing home residents has been reduced by 9.1 percent by the first quarter of 2013, compared to the last quarter of 2011.

There are approximately 30,000 fewer nursing home residents on these medications now than if the prevalence had remained at the pre-National Partnership level.

At least 11 states have hit or exceeded a 15 percent target and others are quickly approaching that goal. The states that have met or exceeded the target are: Alabama, Delaware, Georgia, Kentucky, Maine, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee and Vermont."

Additional information about this initiative is available on the Advancing Excellence in America's Nursing Homes website.

Becky Morgan

Inspiring Story for the Month: Edythe Kirchmaier at 105 (and 7 months!)

NBC's Today Show featured Edythe Kirchmaier, who at 105+, uses her humor and upbeat personality to banter with talk show hosts and interviewers.  She redefines the meaning of "spry," recently passing the test to renew her driver's license, after more than 85 years without so much as a parking ticket, much less a driving violation.  Best of all, she's celebrating 40 years of volunteer service at Direct Relief International, calling it her second home.

Edythe is an important part of the national economy.  Seniors contribute huge numbers of volunteer hours, with rates of older volunteers increasing over the last several years.  One study reports:

"The proportion of older adults who volunteer 100 or more hours a year is 46 percent higher today than in 1974. Today, 46.1 percent of older adults volunteer 100 or more hours a year while 31.6 percent of older adults volunteered 100 or more hours in 1974."

Related articles

Facebook's Oldest User, 105, Gets a New Car From Mystery Donor

Feds Reverse Course On Disability Provision Of Affordable Care Act

Federal officials have reversed course on a new provision of the Affordable Care Act that would have largely barred guardians from serving as paid caregivers for adult children with developmental disabilities.  Officials with the Oregon Department of Human Services said Friday that federal officials have agreed to work with the state to develop “the right processes” to allow guardians — oftentimes relatives — to continue as paid caregivers. It’s unclear yet what those processes will be, said Patrice Botsford, director of developmental disabilities services for the department.  The news comes as a relief to parents such as Deana Copeland, who feared the provision could have forced her to place her 22-year-old daughter in foster care. Her daughter, Andrea Hood, suffers from cerebral palsy, spina bifida and autonomic dysreflexia, a potentially life-threatening condition, and requires around-the-clock care.  Copeland is both Hood’s legal guardian and paid service provider, for which she receives $1,400 a month.  The purpose of the federal provision is to protect against the possibility of financial fraud, since the guardian who develops a care plan has the ability to hire himself or herself as the paid caregiver.

Source/more:  The Oregonian via Disability Scoop

Related articles

Hoping for Medicaid flexibility

Conflicts of Interest for Conservators/Guardians: A Judge's Perspective

Missouri Circuit Court Judge Karl A.W. DeMarce offers thoughtful comments from the bench on potential conflicts of interest for family members, especially spouses, in handling responsibilities as court-appointed conservators or guardians.  Judge DeMarce stresses the lawyer's role in advising  conservators on appropriate financial transactions, including transfers of assets:

"No conservator-spouse should have to face unnecessary legal complications and burdens – in addition to the family tragedy of having to care for a loved one no longer capable of managing his own affairs – because her attorney failed to advise her of the legal obligations and potential conflicts of interest involved. No attorney wants to learn that a client’s world has been unnecessarily turned upside down because of his or her failure to provide timely and complete legal advice. In the potential legal minefield of spousal conservatorship, the value of frank, timely, and comprehensive legal advice cannot be overestimated."

Further, the judge points to the lawyer's role in explaining the validity of transactions to the court:

"Counsel can play a valuable role not only in advising the conservator-spouse, but also in explaining to the probate division why certain types of expenses beneficial to the conservator-spouse, which would ordinarily be seen as being in violation of fiduciary duties, may be in the protectee’s best interests due to MO HealthNet program requirements."

Read the full article, "The World Turned Upside Down: Challenges Facing the Conservator-Spouse," published in the August 2013 issue of the Journal of the Missouri Bar.

Clients Keeping Secrets---From Their Financial Advisors

Securian did a survey on client secrets, that is, on what clients don't tell their financial advisors and why they don't do so. The survey found almost 30% of clients did not tell their financial advisors something. The report details the range of information held back and the impact on the financial planning advice when the client does so.  The survey reveals a number of reasons why clients fail to be forthcoming, ranging from the emotional to irrelevant to the financial strategy.  The report includes tables that break down the responses by question and by demographic data.  

Becky Morgan

Medicare and the Health Insurance Marketplace

So much more attention is being given the Affordable Care Act as we get ever closer to the 2014 implementation.  There is some confusion (maybe for all of us) about the correlation, if any, of Medicare and the Health Insurance Marketplace. CMS has issued a fact sheet for frequently asked questions (FAQ) for Medicare beneficiaries. People with Medicare and the Health Insurance Marketplace covers three common (and important) questions for Medicare beneficiaries: what to do if contacted to sign up for a marketplace health plan (be careful about fraud; it's illegal to knowingly sell to a Medicare beneficiary); what to do about marketplace plans during the Medicare open enrollment (nothing); and whether one's Medicare coverage would be affected by the health insurance marketplace (no).

Susan Jaffe of Kaiser Health Network (KHN) wrote a story on this on August 25, 2013.  No Shopping Zone: Medicare is Not Part of the New Insurance Marketplaces. The story notes two outreach efforts-one to get the uninsured to sign up and the other to inform Medicare beneficiaries to not (enroll or telephone).  The story quotes Michele Patrick, Medicare's Deputy Director of Communications: "[w]e want to reassure Medicare beneficiaries that they are already covered, their benefits are not changing and the marketplace doesn't require them to do anything..."  The 2014 Medicare and You handbook (forthcoming) will reinforce this with a message to beneficiaries about  who the marketplace is for, and who it is not---i.e., Medicare beneficiaries.

Becky Morgan 

Infographic on Long-Term Services and Supports

Kaiser Family Foundation (KFF)  has published a neat Visualizing Health Policy infographic (they are all neat, honestly) on A Short Look at Long-Term Care for Seniors. This infographic is designed to give:

"an informational snapshot of long-term services and support (LTSS) for seniors in the United States. This includes information about the number and proportion of seniors who will need LTSS because of physical and cognitive impairment, the role of unpaid family caregivers in providing the majority of LTSS, the role of Medicaid (not Medicare) as the primary payer for LTSS, the shifting of Medicaid spending from institutional-based care toward community-based care, and the fact that only 35% of US adults 40 years or older say they have set aside money for their long-term needs."

This follows up the report released previously that we referenced in the August 27th post on Who Will Take Care of the Boomers. The  infographic is part of a monthly series done by KFF with the Journal of the American Medical Association (JAMA). You can access a larger-sized version of the infographic on the JAMA website.

Becky Morgan

Comparative Elder Law: Analyzing European Court of Justice Cases on Elder Rights

Professor Israel Doron, thoughtful and prolific researcher from the University of Haifa, has an interesting new article analyzing 16 years of data from the European Court of Justice (ECJ) on cases considering "elder rights." 

The May 2013 article, "Older Europeans and the European Court of Justice," is published in the British Geriatrics Society's  international journal, Age and Ageing.

While the total number of cases discovered (123) is fairly low, the outcomes largely favor the older adult, thus suggesting the potential importance of judicial remedies.  The cases studied predate the 2010 adoption of Article 25 of the UN Charter on Human Rights that recognizes core rights for older persons and others.

An example of the cases is provided by Professor Doron: "A man born in June 1935 was employed by the English Post Office until he retired. In 1998, aged 62, he was in receipt of a pension. However, he was denied a ‘winter fuel payment’, a payment that under State Regulations would have been paid to him if he was a woman."  The ECJ concluded the discriminatory treatment could not be justified as necessary to financial equilibrium of the social security system or to insure consistency in the benefit plans at issue.    

Related articles

September issue of Age & Ageing journal out now

Survey - RSVP - Reform Matters Conference Call September 2013 (9/12/2013) - National Women's Law Center

The National Women's Law Center invites you to register for "Reform Matters"--a Conference Call September 2013 (9/12/2013):

via action.nwlc.org

Teaching tools: The Global Aging Quiz

The first day of class, I give my students the U.S. Census Bureau's "Global Aging Quiz".  It's a great way to get them thinking about the kinds of issues raised by demographic aging.  I use the quiz to provide a context for my introduction to elder law (Chapter 1 of my casebook)...and to get them used to the idea of interactive discussion and participation.  It works--kind of.

Access the quiz via  U.S. Census Bureau (Kinsella, et al.) An Aging World (2009) (pp. 5-6). 

Wise Words from a Wise Man: Charles Sabatino on Advance Care Planning

The August issue of the e-Journal from the ABA Commission on Law and Aging is now circulating. It is a particularly rich issue of Bifocal, including articles on the critical importance of evidence-based priorities for support of legal services, comparative state information on use of POLST forms, and a report on funding of 11 new legal service projects by the Administration on Aging.

My favorite article, however, is by Charlie Sabatino, titled "Eight Advance Care Planning Lessons That Took Me Thirty Years to Learn." I suspect seasoned elder law attorneys might join me in concluding that this article should be mandatory reading for all general practitioners (and health care providers?!). The over-simplified reliance on "form book"living wills needs to be changed. As Sir Charles implies, lawyers can be part of the solution and should be less a part of the problem.

Any additional observations on the practical problems with advance care directives?

Please feel free to comment below!

Social Security Facts --- Fast

Have you ever taken a look at Social Security's "Fast Facts"? The 2013 version is now out and gives interesting "did you know" statistics, including this one:  "Social Security provided at least half the income for 64 percent of the aged beneficiaries in 2011." The FAQs cover income and the OASDI program, including beneficiary profiles by age, sex, and more.  There are all kinds of stats provided along with nifty charts in an easy to read format.  You can download the entire publication as a pdf, or simply access specific topics from this link . Of course, you can find many more detailed reports from the Research and Statistics site of SSA.gov. 

Obseity in the U.S.-Follow Up

Professor Dayton blogged on August 20th about obesity in the U.S. Here's a follow-up on the topic. Governing  published an article by Dylan Scott, In South Carolina, Doctors Write Parks Prescriptions to Combat Obesity. The article features the program, Prescription for Parks, which is a coordination between the Parks, Recreation and Tourism Department and the Health and Environmental Control Department.  A person's doctor can "prescribe" the parks for the person, which allows the person to have free admission to the state's parks. The article notes that "two-thirds of adults are obese or overweight, and ... obesity-related health care costs have been projected to increase from $1.2 billion in 2009 to $5.3 billion by 2018..." 

You can access a number of other articles from the Governing website about state and local governments' efforts to help their residents become more healthy. For example, Governing had  published a story in September of 2012 about playgrounds that include equipment specifically for elders; the story notes this is a concept that has spread to the U.S. from Europe and Asia.

By the way, Governing has a section devoted to the issues of aging that governments are addressing. Governing Generations has some interesting stories, interactive maps and data. Topics range from transportation, to housing, to employment to Boomers (of course) and more.  Check it out....and then go for a walk!

Becky Morgan

Medicaid Expansion in Michigan

This just in---the Michigan Senate voted on August 27th to increase Medicaid coverage for almost 470,000 individuals with low incomes, according to a story in Governing.   Adding Michigan, there are 25 states that will be expanding Medicaid coverage as a result of the Affordable Care Act, with 21 rejecting expansion and 5 still considering it, according to the article, which cites to the Kaiser Family Foundation (KFF). 

If you haven't checked out the KFF site recently, go take a look.  The site has the results of KFF's August 2013 tracking poll on the Affordable Care Act as well as loads of information on a variety of topics, including Medicaid expansion, the Affordable Care Act, Medicare, and even world health news.  It's one of my go-to sites for staying current on developments.

Becky Morgan

Cost Analysis in LTC: Analyzing Effects of Case-Mix & Setting on Medicare/Medicaid Expenditures

Robert L. Kane, Andrea Wysocki, Shriram Parashuram, Tetyana Shippee, and Terry Lum, researchers at the University of Minnesota School of Public Health and the University of Hong Kong, have released their study, "Effect of Long-term Care Use on Medicare and Medicaid Expenditures for Dual Eligible and Non-dual Eligble Elderly Beneficiaries," comparing the effects on costs by level of care and location, including nursing home or community care.  The report offers findings that may be surprising for critics of nursing home cost, suggesting that nursing homes may actually be "subsidizing Medicare by reducing hospital use and lowering medical expenditures." The report is published in the peer-reviewed, on-line Medicare & Medicaid Research Review, a publication of CMS, the Centers for Medicare & Medicaid Services.

Upcoming Webinar: Defining and Delivering “Disability-Competent Care”

Leading Healthcare Practices and Training:
Defining and Delivering “Disability-Competent Care”
 
The CMS Medicare-Medicaid Coordination Office is facilitating a webinar series for interested providers and health care professionals, front-line staff with health plans and practices, and stakeholders to introduce and explore the many uses of the Disability-Competent Care (DCC) Model.  The DCC model is a resource for providers, health plans, and healthcare organizations to enhance capacity to integrate care for adults with disabilities.  Webinars will be tailored by audience and topic within this subject area.
 
Meeting the needs of persons with disabilities is of increasing importance as individuals live longer and the prevalence of adults with functional limitations and disabilities rises. With this in mind, this webinar will present the Disability-Competent Care model which is centered on the individual, delivered by an interdisciplinary team, and focused on achieving and supporting an individual’s maximum function.  Providers serving adults with disabilities developed the care model. 
 
This webinar series, and subsequent presentations geared toward specific audiences (e.g. front-line staff), will also seek the input from participants regarding how best to disseminate these and other Disability-Competent Care resources to healthcare professionals who connect with adults with disabilities at all points in the healthcare delivery process.
 
Please contact [email protected]  or [email protected] if you have questions in advance of this event.
 
The Disability-Competent Care model was developed by the Disability Practice Institute (DPI).  DPI is founded by three plans: Commonwealth Care Alliance, Community Health Partnership, and Independence Care System.  The Lewin Group, under contract with the CMS Medicare-Medicaid Coordination Office, partnered with DPI to create the Leading Healthcare Practices and Training: Defining and Delivering Disability-Competent Care webinar series.
 
Interested participants are encouraged to pre-register for each webinar in the series here.


Participant Dial-in #: (866) 615-1886 Access Code: 301728
Date (first webinar): Wednesday September 4th, 2013
Time: 2 – 3PM EDT
All presentations will be recorded and available for download.

Same-Sex Marriage: New Mexico Judge Orders County Clerk to Issue Licenses

Following up on Becky's posting today on same-sex marriages and federal benefits, it is timely to report that another state, New Mexico, has taken a major step towards confirming marriage rights for same-sex couples. 

On Monday, August 26, New Mexico District Court Judge Alan Malott granted mandatory injunctive relief in the state's most populous county (Bernalillo, surrounding the city of Albuquerque), ruling that New Mexico's Constitution prohibits discrimination in marriage licensing on the basis of sexual orientation.  Last week a similar ruling in favor of same-sex marriages was issued in Santa Fe County's District Court. 

News reports indicate that the Bernalillo County Clerk's office began issuing marriage licenses to same sex couples today, August 27, 2013.

For those who might ask "why are these cases case reported on an Elder Law blog?," remember the lead plaintiff in U.S. v. Windsor, 133 S. Ct. 2675, decided June 26, 2013, was an older adult, challenging the adverse estate tax consequences of the IRS's refusal to recognize the validity of her marriage, following the death of her long-time partner. 

Related articles

Second New Mexico judge rules that counties must issue marriage licenses to same-sex couples