Elder Law Prof Blog

Keeping People With Dementia At Home

The researchers at Johns Hopkins have issued a new study, published in the Journal of the American Geriatrics Society,  Unmet Needs of Community-Residing Persons with Dementia and Their Informal Caregivers: Findings from the Maximizing Independence at Home Study. A press release from John Hopkins about the story says the researchers offer that "routine assessments of patient and caregiver care needs coupled with simple fixes in the areas of safety — grab bars in the bathroom, carpets safely tacked down to prevent falls, guns locked away — and basic medical and supportive services could go a long way toward keeping those with dementia from ending up in a nursing or assisted-living facility."  The press release points out that this research builds on prior work that shows a correlation between failing to address these needs and nursing home admissions:

Previous research has shown that greater unmet needs among people with dementia are predictive of nursing home placement and death. Caregiver stress also foretells of nursing home admission for people with dementia. The new study, described in the December issue of the Journal of the American Geriatrics Society, also finds most caregivers have multiple unmet needs, including lack of access to resources and referrals to support services and education about how to best care for their loved one.

The authors conclude that:

Many community-residing PWD and their caregivers have unmet dementia-related needs for care, services, and support. Providers should be aware that unmet needs may be higher in minority and low-income community residents, caregivers with lower education, and individuals with early-stage dementia. Identifying and treating symptoms of depression in PWD and caregivers may enable them to address their other unmet needs.

The full article is available here  in html or here as a pdf.

New Blog Post on Palliative Care, Health Policy & Health Reform

A new post published on the Health Affairs Blog on December 23, 2013 was the second installment on the discussion on palliative care, health policy and health reform.  Advanced Care Model Honors Dignity, Integrates Health System for Seriously Ill People and Loved Ones was co-authored by Brad Stuart, Andrew MacPherson and Gary Bacher.  The series

features essays adapted from and drawing on an upcoming volume, Meeting the Needs of Older Adults with Serious Illness: Challenges and Opportunities in the Age of Health Care Reform, in which clinicians, researchers and policy leaders address 16 key areas where real-world policy options to improve access to quality palliative care could have a substantial role in improving value.

the Advanced Care model, a delivery system approach that includes palliative care and coordinates services for people with serious chronic illness across hospitals, medical groups, homes, and the community." The post notes the disjointed approach that results in patients with "advanced illness" mired in the gap between providers and existing programs. "In short, a person with advanced illness has entered the “gray zone” between treatable and terminal illness."

The authors describe the "Advanced Care" model as one that operates on what some might describe as a horizontal plane, using "a 'team of teams'" for coordination of care. The authors list the key components of the model as:

• Prioritizing personal values, goals, and preferences as drivers of care, rather than clinical urgency and crisis.

• Placing the focus of care at home, whether personal residence, long-term care, or homeless shelter.... 

• Extending palliative care, an important component of Advanced Care, into home and community, managing symptoms and suffering and supporting advance care planning over time at the ill person’s own pace, in the safety and comfort of home.

• Fostering better use of hospice, increasing enrollments and, where appropriate, earlier entry into hospice.

• Empowering the personal physician to guide a team of critical allied professionals such as nurse practitioners, physician assistants, nurses, social workers and others. This approach mitigates workforce challenges by leveraging scarce geriatrician, palliative care, and primary care physician time and expertise through teamwork....

• Integrating care across acute, post-acute, and long-term care settings into a coherent, operational whole, preparing disparate hospitals and provider groups to work with private health plans and Medicare to provide accountable care-based solutions....  

• Preparing for population management....

The authors conclude that this model may provide better care for those patients who have significant chronic illnesses and emphasizes home care over hospital care.

Thanks to Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging for forwarding information about this blog post.

Consumer Financial Protection Bureau Issues Preliminary Findings on Arbitration Study

The Consumer Financial Protection Bureau (CFPB) has issued preliminary results on its evaluation of "pre-dispute arbitration provisions," used in many contracts for consumer financial service products, such as credit cards, checking accounts or pay-day loans.  Congress commanded the study as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.   

Consumers probably end up viewing these clauses as triggering "mandatory" arbitration, in that consumers typically "consent" by signing agreements without any real understanding of the implications.  The report summarizes both pro and con arguments on the use of pre-dispute arbitration provisions. 

The study makes strong use of academic research, including recent work by Peter Rutledge (University of Georgia Law)  and Christopher Drahozal (Kansas Law), Jean Sternlight (UNLV Law), and my own colleague and friend, Nancy Welsh (Penn State Law). 

Much of the CFPB report focuses on what it calls the "front end" of arbitration issues, identifying a host of arbitration-related factors addressed in corporate contracts, such as opt-out rights, arbitrator selection, limits on recoverable damages, time limits for claims, and allocation of costs.

Reading between the lines of the report's preliminary findings, it seems to me to support the view that companies use arbitration as a procedural barrier to consumer challenges, including class actions. At the same time, statistics cited in the report suggest that companies may dispense with arbitration when pursuing collection from defaulting consumers, instead filing suits in small claims courts (the CFPB will address federal and other state court claims in the future). 

This seems consistent with what I observed during my 10+ years with Penn State Law's Elder Protection Clinic, where we frequently represented older clients on debt claims.  Many of these claims were "old" debts, where our clients had been making minimum payments for years, but  were no longer able to keep up with the payments after retirement, particularly if also confronted with new debt from medical crises. I don't recall any of the collection cases being initiated by arbitration.  By filing in court, the companies seemed to hope for a low-cost route to default judgments.

The New York Times cites the CFPB study in a recent editorial, calling for a change in laws to permit consumers an effective legal tool when needed to challenge certain corporate practices, pointing out that:

"In disputes over financial products — involving, say, excessive fees, inflated loan balances, faulty credit reporting, or fraud and discrimination — the damages at stake may be significant for an individual but not enough to warrant the cost of a legal challenge unless grouped in a class action. Forced arbitration also fosters abuse, since there is no check on wrongdoing that takes small amounts of money from potentially millions of customers."

The CFPB notes that its December 2013 findings will be followed by a more complete report, expected in 2014.

The Laws of 55+ Housing: Mark Bauer's Focus at AALS Meeting on January 3

Mark Bauer at Stetson University Law will make a presentation on the role of 55+ housing at the upcoming AALS Annual Meeting in New York City.  In describing his topic, Professor Bauer comments: "Such housing communities are exempt from civilian rights laws and almost any substantive rules. Yet it is questionable whether strong benefits really accrue to elders." 

His presentation will likely draw upon his recent scholarship, including "'Peter Pan' as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to be Exempt from Civil Rights Laws and Substantive Federal Regulation," recently published in University of Illinois' Elder Law Journal. 

Professor Bauer has broad scholarship interest, including antitrust, administrative law, property and financial advocacy. He has also served as the supervisor of Stetson's Elder Consumer Protection Law internship program. His presentation will be part of the Aging and Law Section meeting for the American Association of Law Schools' Annual Meeting to be held in New York City from January 3-5.  Professor Baur is the incoming chair-elect for the Section, with duties to include planning the program for 2015.

Cash in the Hands of Aging Relatives

My colleagues at Penn State Law have often provided practical fact patterns useful for discussion in my Elder Law class. A number of years ago, one of my colleagues shared the problem of his mother believing that caregivers were stealing from her.  It was hard to know whether her worries were real or the product of diminishing capacity -- or perhaps just a variation on her documented obsession with frugality

Along that same line, a New York Times writer tracks how he and his siblings have tried to keep track of their aging father's preference for cash.  I'm sure that having cash on hand can be an important component of maintaining personal dignity, even if risky in a larger sense.  For more, read Patrick Egan's "Tracking a Thief, Once You Know There Is One," recently published by the New York Times.

Hat Tip to Professor Laurel Terry for the link to this interesting essay.

The Fading Retirement Dream?

The AP released a story on December 29, 2013 by Paul Wiseman, David McHugh & Elaine Kurtenbach, business reporters for the AP, AP IMPACT: The World Braces for Retirement Crisis. I think this is a valuable article for us to help our students understand the issues facing those clients planning for retirement.

We've previously posted about individuals saving enough for retirement, and we know the impact that the "Great Recession" has had on retirement portfolios for many.   This article looks broadly at the "retirement crisis" which according to the authors, is due to the collision of 3 factors: (1) cutbacks in government retirement programs as well as changing retirement age, longevity and declining rates of birth; (2) the cut to private pensions, and (3) individuals failure to save sufficiently + the impact of the Great Recession on their savings. By examining these 3 factors together rather than individually, the article paints a different future for many who may never be able to afford to retire, a situation that is not limited to just the United States.

The article examines how an expectation of retirement came into being, contrasts those newly retired to those who may never be able to retire and devotes some attention to the issue of pensions. Companies as well have changed the benefits they provide to their employees. The article also points to the failure of  individuals to save (or save enough). Add to that the impact of the Great Recession, and we may find many who will never be able to afford to retire.

The article reviews the issues faced by some countries as well as their responses, and summarizes the changes the experts expect: cutbacks in pensions with the concomitant impact and the outlook for those who work past the traditional retirement age.

Want to retire?  Better start saving more now. Make it your 2014 New Year's resolution--and make sure it's one you don't break.

 

Diane Rehm Interview with Author Katy Butler on "Knocking on Heaven's Door"

One of the most memorable pieces I've read was a New York Times essay written a few years ago by Katy Butler.  Butler wrote with restrained emotion and honesty about her father's struggle with deepening Alzheimer's, fueled beyond all hope of better days by his pacemaker.  She later expanded on the essay with a book published in 2013, "Knocking on Heaven's Door: The Path To a Better Way of Death," where she digs into the background of legal and medical issues about end-of-life, and details her mother's very different path. 

Diane Rehm has a fascinating interview with Katy Butler, available on podcast and being re-broadcast today on many public radio stations. Near the end of the hour-long segment, one of the callers is an Elder Law attorney (I didn't catch his location -- I was blogging as I listened!).  Here's a link to Diane Rehm's website for details on the interview. 

Retirement Trends Post-Great Recession

The Brookings Institution has issued a new report on Impact of the Great Recession on Retirement Trends in Industrialized Countries. Authored by Gary Burtless & Barry P. Bosworth, the report was released November 5, 2013. The abstract explains:

The Great Recession had a large impact on unemployment rates and growth in wealthy industrial countries. When the recession began most rich countries were experiencing an increase in labor force participation rates after age 60. This paper examines whether the downturn slowed or reversed the trend toward higher old-age participation rates. We use straightforward time series analysis to test for a break in labor force trends after 2007. Our results indicate that the average rate of increase in labor force participation slowed in only a handful of countries. Averaging across all 20 countries in our sample, we find that the average pace of labor force participation increase was faster after 2007 than before. Countries that experienced unusually severe downturns represent exceptions to this generalization. In most countries, however, the trend toward later retirement not only continued, it accelerated.

Invitation to Readers: How Are We Doing? Your Thoughts, Please

Kim Dayton invited Becky Morgan and me to join her on the Elder Law Prof Blog, with our collaboration first appearing in mid-August.  I've been surprised by how much I've enjoyed this opportunity.  Behind the scenes, it has been great to get to know Becky and Kim better.  For example, Becky and I often "chat" on weekends about upcoming events or topics. 

Perhaps more importantly, I have found that the act of writing regular posts requires me to read both more broadly and more carefully. I'm encouraged to pursue those tantalizing leads I hear or read about (and I'm getting comfortable navigating state court websites from Maine to Washington!)  The downside, of course, is that blogging is time consuming, particularly as we do write original material. 

We're always pleased to hear from readers (and the numbers seem to be growing, with recent daily visits averaging above 1,000 in number).  I find that most comments come via email, rather than the comment function on the Blog. That's fine, of course, as long as readers realize it is probably easier for us to miss an email than a posted comment on the Blog itself.

At the end of the year, it would be fun for the three of us to hear what you, as readers find most interesting and/or useful in the Blog these last four months. For example,

• Are there topics we're missing?
• How useful is it for us to summarize news stories from media sources? 
• Do you like links to faculty-authored articles?
• Are individual case reports interesting or useful?
• Are we too opinionated -- or not enough? 
• Elder law is full of acronyms -- LTC, MA, CCRCs, ALF, and so on.  Is it okay to use them (or rather, are we remembering to provide appropriate definitions)?
• What topics do you find most interesting?

Let us know what you think!  Our New Years' Resolutions will include efforts to do a better job!  And thank you for all of your suggestions, encouragement, corrections and comments these last four months! 

Happy 2014, folks!  We hope you have a healthy, happy start to the new year. 

AALS Aging & Law: Laura Hermer to Address ACA Impact on Seniors

Much of the national media attention on the Affordable Care Act has focused on those who were previously uninsured or those who must change policies and coverage.  But there are also important studies emerging on how the ACA will affect seniors. 

At the AALS annual meeting in New York City, Hamline University School of Law's Laura Hermer will address changes to Medicaid in the Affordable Care Act that impact elders, most notably concerning long term care and care coordination for "dual eligibles." Professor Hermer will also discuss some of the many problems for beneficiaries that remain or, in some cases, may be created following ACA-related changes.

Professor Hermer has two new articles scheduled for publication in 2014, including "Enterprise Liability: Medical Malpractice Reform in the Service of Improved Health Care Quality and Outcomes," to be published in the Journal of Health Care Law and Policy, and "The Future of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?," co-authored with Dr. Merle Lenihan of University of Tennesseee, to be published in the Kentucky Law Journal.

Laura's ACA forecast presentation will be part of the panel assembled by Wayne State Law Professor Susan Cancelosi for the Aging and Law Section at the AALS meeting on Friday, January 3, scheduled to begin at 3:30 p.m. 

Hospice Care Manipulated by Providers: Washington Post Report

Washington Post reporters Peter Whoriskey and Dan Keating use more than ten years of data from California to provide a detailed portrait of hospice, with national implications, concluding that providers are pursuing "healthier" patients to increase their margin.  While acknowledging the importance of Medicare-supported hospice for individuals legitimately diagnosed with less than six months to live, the Washington Post article uses survival rates to suggest manipulation of the diagnosis for financial gain:

"[T]he survival rates at AseraCare are emblematic of a problem facing Medicare, which has created a financial incentive for hospice companies to find patients well before death. Medicare pays a hospice about $150 a day per patient for routine care, regardless of whether the company sends a nurse or any other worker out on that day. That means healthier patients, who generally need less help and live longer, yield more profits.

 

The trend toward longer stays on hospice care may be costing Medicare billions of dollars a year. In 2011, nearly 60 percent of Medicare’s hospice expenditure of $13.8 billion went toward patients who stay on hospice care longer than six months, MedPAC, the Medicare watchdog group created by Congress, has reported."

For the full Washington Post story, itemizing factors contributing to misuse of hospice, see "Hospice Firms Drain Millions from Medicare."

Veterans Benefits Planning-Need for Change?

The New York Times ran a December 23, 2013 article as part of their series, "A Vulnerable Age." Written by Jessica Silver-Greenberg, Wining Veterans' Trust, and Profiting From It focuses on the Veterans pension program and the process of positioning vets for eligibility for the program. The article delves into the practice of veterans benefits planning, the VA accreditation system and the VA oversight of it. The article draws comparisons between Medicaid planning and Veterans benefits planning and uses stories from some elder vets and interviews with the VA spokesman as well as other agency personnel. Read this article.

A Fitting End? 28 Years on the Run = 28 Years in Prison

John Donald Cody, Harvard-trained lawyer and purportedly once engaged in military intelligence, disappeared from his law office in southern Arizona some 28 years ago.  He was one step ahead of prosecution then -- suspected of stealing money from clients' trust funds.  Changing his name and location over the years, his crimes only got bolder and more trust-abusing.

In December 2013, 66-year old Cody, a/k/a Bobby Thompson and "Mr. X," came full circle, sentenced to 28 years in prison for a multi-million dollar fraud, operating a high-profile charity scam that he called the "United States Veterans Association."  

It is a colorful tale, and I just hope it is not made into a movie glorifying his misdeeds.  But, one colorful detail I cannot help but report:  Cuyahoga Ohio Judge Steven Gall also sentenced Cody to spend each Veterans Day of his prison time in solitary confinement.   

Related articles

Justice for veteran scammer

Harvard-trained attorney sentenced to 28 years for Navy charity scam, Alabama donors among those targeted

Mandatory Reporting of Elder Abuse-Arizona

Elizabeth Rollings, associate at the elder and special needs law firm of  Fleming and Curti in Tucson, Arizona, wrote the firm's most recent newsletter on Reporting Abuse, Neglect or Exploitation of Vulnerable Adults. Although specific to Arizona, the newsletter is an interesting discussion of an attorney's reporting requirements under the applicable statute and ethics rules.  Attorneys in Arizona are mandatory reporters with the applicable statute requiring

any attorney who is responsible for preparing the tax records of a vulnerable adult, or responsible for any “action concerning the use or preservation of the vulnerable adult’s property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that exploitation of the adult’s property has occurred or that abuse or neglect of the adult has occurred shall immediately report or cause reports to be made …”

Arizona has the version of Model Rule 1.14 that allows an attorney to take protective action, so, Ms. Rollings writes,

Arizona’s version of the ethical rules governing lawyers provides specific guidance to attorneys in cases where an attorney believes that his or her client of diminished capacity is at “risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.” In these specific cases, an attorney may take “reasonably necessary protective action,” including consulting with individuals or entities who may be able to protect a client with diminished capacity.  In taking any protective action, among other considerations, an attorney may be guided by the client’s best interests or the wishes and values of the client.

As far as other professionals in Arizona, the article notes that the applicable Arizona law is unambiguous "doctors and other medical providers are covered as to reporting abuse, neglect and exploitation, and accountants and tax preparers are covered as to reporting exploitation. Other states vary, with some focusing on medical providers and others on social workers and government officials."

How is this handled in your states?

 

 

See You in NYC: AALS Aging & Law Section Program on January 3, 2014

Hard to believe, but AALS Annual Meeting 2014 is just around the corner.  Aging & Law Section Chair Susan Cancelosi (Wayne State Law) has planned a great program, and we look forward to the interaction between panel members and the audience.

The theme is "From the Affordable Care Act to Aging in Place: What You Need to Know as You Grow Older."

Speakers include:

Mark Bauer (Stetson Law) on "Aging and 55+ Age-Restricted Housing."

Laura Hermer (Hamline Law) on "changes to Medicaid under the Affordable Care Act that impact the elderly, with particular attention to several state implementations of relevant state plan options and demonstration projects involving dual eligibles and others."

Richard Kaplan (Illinois Law) on “the very different world of financing health care that awaits retirees, including how to  navigate the various Parts of Medicare and their attendant problems.”

Katherine Pearson (Penn State Law) will discuss "the emerging trend of states adopting laws authorizing nursing homes to collect unpaid debts from family members or fiduciaries."

I'll provide more details about the individual speakers' programs, both before and after the event.  But remember to mark your calendar for New York City, on Friday,  January 3, at 3:30-5:15.  As always, there will be a short business meeting following the presentations and discussion.  

Michigan Advance Directive Booklet

The Michigan Office of Services to the Aging has posted an updated version of "Advance Directives: Planning for Medical Care in the Event of Loss of Decision-making Ability."

Anyone want to offer additional state specific resources? Let us know and we'll include them in a future post.

Thanks to Brad Geller for letting us know about this one.

New Report on Medicaid Expansion & Affordable Care Act

Kaiser Family Foundation has released a December, 2013 Issue Brief that looks at the impact on minorities who are in one of the states not expanding Medicaid under the ACA. The Impact of the Coverage Gap in States Not Expanding Medicaid by Race and Ethnicity looks at those who will be uninsured.  The summary of the findings:

• [s]ignificant racial and ethnic disparities [exist] in health coverage among adults. Overall, among adults, people of color are more likely to be uninsured than Whites (27% vs. 15%), with Hispanics at the highest risk of lacking coverage (33%).

• Medicaid expansion offers a particularly important opportunity to increase health coverage among people of color. Overall, more than half (53%) of uninsured adult people of color have incomes at or below the Medicaid expansion limit.

• [I]n states that do not expand Medicaid, millions of poor adults will be left without a new coverage option, particularly poor uninsured Black adults residing in the South, where most states are not moving forward with the expansion. Four in ten uninsured Blacks with incomes low enough to qualify for the Medicaid expansion fall into the gap, compared to 24% of uninsured Hispanics and 29% of uninsured Whites. These continued coverage gaps will likely lead to widening racial and ethnic as well as geographic disparities in coverage and access.

The report estimates that 5,000,000 adults without insurance in those non-expansion states will probably remain without insurance.  Although they would have qualified for Medicaid under ACA expansion, they are too poor to purchase coverage in the Marketplace. A pdf of the report is available here.

 

 

 

Son's Challenge to Nursing Home Claim as "Prohibited Guarantee" Fails

I've been reading discussions lately on elder law listservs, debating whether nursing homes'  attempts to hold family members  contractually liable to pay bills violate the Nursing Home Reform Act's bar on mandatory third-party guarantees of payment. 

This issue was addressed recently by the United States District Court for the Western District of Pennsylvania in White v. Jewish Association on Aging, where a pro-se plaintiff alleged a violation of NHRA at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii) and 1396r(c)(5)(A)(ii), tied to allegations that his mother's nursing home required him to sign the admission agreement for his mother. 

The U.S. District Court dismissed the suit, rejecting  NHRA as permitting a private right of action, but then also addressing the specific "guarantee" issue urged by the son:  

"In signing the Admissions Agreement and agreeing to become the Responsible Party... Plaintiff consented to apply Ms. White's financial resources to cover her care.... The Agreement also explicitly states that the Responsible Party's failure to apply a Resident's income and assets to pay for the care would result in the Responsible Party becoming personally liable—not for the bill itself— but 'for any misappropriation or misapplication of Resident's funds or assets.' Plaintiff makes no allegation that Defendant is doing anything other than what is expressly permitted—requiring him to apply Ms. White's finances to cover her costs. Thus, Plaintiff is not being treated as a guarantor, and his claim should be dismissed." (citations ommited)

Hat tip to Rob Clofine, Esq. of York, Pennsylvania for the White case link.

Income Sources

I am guessing a significant majority of us teach about income security, saving for retirement and the "three-legged stool," and have various discussions about the stability of the stool for those retired or about to retire. (sometimes I liken retirement security to a pogo stick-it goes up and down and can wobble if you're not balanced).  AARP's Public Policy Institute  just released a fact sheet by Ke Bin Wu on the  Sources of Income for Older Americans, 2012.  This  report looks at income for individuals (not households or families) who are 65 or older.  Here are the "bullet points" from the report: 

• Social Security remains the mainstay of retirement income for most older Americans, while only about one in three receive regular payments from pensions and retirement savings.

• Social Security accounts for about four out of every five dollars of income for older people with low to moderate incomes.

• Earnings as a source of older people’s income have risen steadily over the past two decades, while income from assets has fallen.

• Older minorities are less likely to have income from Social Security, pensions and retirement savings, interest, and dividends.

The fact sheet has some good data and helpful charts. It looks at not just the typical three legs of the stool, but also discusses the role of earnings , SSI and income trends. The fact sheet notes the importance of earnings in the discussion since more folks are working longer. Be sure to take a look at figure #2 which shows in graph-format the "Income Sources as a Percent of Total Income for People Aged 65 and Older, 1990 to 2012."

 

Calendar This-Senate Committee on Aging

On January 14, 2014 at 2:15 p.m., the Senate Committee on Aging will hold a hearing "to examine aging in comfort, focusing on assessing the special needs of America's Holocaust survivors." 

Earlier, Vice-President Biden announced that the President's administration plans to appoint an "envoy" with Health and Human Services to liaise between survivors and the non-profits that provide services. According to the article, of the 100,000 survivors in the U.S., 25% are below poverty.  The envoy will help "by coordinating assistance, working with aid groups and using diplomatic means to help recover property confiscated during the Nazi era."