Friday, February 13, 2015
WTAE-TV in Pittsburgh, offers an inside look into the alleged role of nursing home lobbyists associated with the Pennsylvania Health Care Association (PHCA) in crafting a notice posted by the Pennsylvania Department of Health, stating that its inspection survey reports "are not intended to be evidence of compliance with any legal standard of care in third-party litigation." (According to WTAE-TV, an original "disclaimer" label on the notice was recently changed by the Department of Health to "explainer.")
Here's a link to coverage, including an article and video, at WTAE-TV: "Emails reveal nursing home lobbyists pressuring state on lawsuits -- Inspection reports not allowed in lawsuits?"
UPDATE: Here is a link to the Pennsylvania Department of Health's nursing care facility locator website, where a detailed "Explanation" of the survey inspection process appears. The notice includes the language quoted by the news report above, and appears the first time you access that website. However, once you press "okay" on the notice, it disappears.
Additional Update: Here is another link to "just" the explanation. As several readers commented, the location of this explanation on the Department of Health website is potentially confusing, as it appears to apply to any Medicaid or Medicare provider that is subject to inspections, but the title on the page as of today's date says "except nursing homes."
Willie Nelson turns 82 in April, 2015. Trigger -- that's his guitar -- has been with him since 1969. For some fun reading about their five decades on the road together, here's the story, from Rolling Stone. (Photo by Paul Familitti.)
Thursday, February 12, 2015
We know there are a lot of Boomers and we expect the Boomers to have a significant impact on aging issues. But, although there are a lot of Boomers, the Boomers aren't the largest cohort of the U.S. population, In fact, the Millennials are #1. According to an article in the New York Times, Millennials Set to Outnumber Baby Boomers. The Millennials are the cohort born between 1981-1997. according to the article, they will hit 75.3 million living members, which will make them a larger cohort than the Boomers. Here's a question-since we are c18 years out, how does this generation continue to grow? According to the article, it is because of "[a]n influx of immigrants, according to a new report from the Pew Research Center. And, of course, members of the boomer generation, currently at 74.9 million, are beginning to die in greater numbers."
The article goes on to discuss how demographers determine the years that define a cohort and what is expected regarding the actions of Millennials. Boomers, take heart. The Millennials may outnumber us, but we still rock on! The Pew Research article, This Year, Millennials Will Overtake Baby Boomers, referenced in the NY Times piece may be accessed here.
New rules from the "Administration on Aging of the Administration for Community Living." Honestly, is that the longest title for any unit in federal government? AoA and ACL operate under the Department of Health and Human Services (HHS) and recently issued new final rules governing Long-Term Care Ombudsman Programs.
Ombudsmen have traditionally had important roles to play as advocates for elderly or disabled residents in facility-based care.
The new rules complete the process of approval that commenced with proposed rules in June 2013. The effective date for the new rules -- deferred to permit implementation and training -- is July 1, 2016.
In a recent email to interested stakeholders, David Godfrey, senior attorney at the ABA's Commission on Law and Aging, comments positively on the new rules:
"Exciting news! ... A culmination of several years of collaborative work with our partners, this rule guides implementation of the portions of the Older Americans Act governing grants to states for operation of Long-Term Care (LTC) Ombudsman programs.
- Key issues this rule addresses include:
- Responsibilities of key figures in the system, including the Ombudsman and representatives of the Office of the Ombudsman;
- Responsibilities of the entities in which LTC Ombudsman programs are housed;
- Criteria for establishing consistent, person-centered approaches to resolving complaints on behalf of residents;
- Appropriate role of LTC Ombudsman programs in resolving abuse complaints; and
- Conflicts of interest: processes for identifying and remedying conflicts so that residents have access to effective, credible ombudsman services."
As noted in the introduction to the new rules, a major reason for the change is to achieve better consistency across the nation, while still preserving the "independence" that has been a hallmark of the best programs.
Touro Law Center has issued a call for papers for the inaugural issue of the Journal of Aging, Longevity and Law, to be published this year. The first issue "will explore issues of adult guardianship."
The new Journal is intended to be interdisciplinary, on a "wide range of topics involving the elderly and the consequences of an aging population on the law and the legal system." Co-Editors-in-Chief, Professors Marianne Artusio and Joan Foley, explained the journal will be faculty and student-edited, and published online. They welcome papers from professionals working in law and health care, as well as from students.
The deadline for submissions for the first issue is March 10 2015. Papers should be submitted in MS Word format to the Editors above, and should "generally be no longer than 35 pages, including footnotes."
Wednesday, February 11, 2015
The Center for Retirement Research at Boston College has a nifty pamphlet on Using Your House for Income in Retirement. The booklet covers home ownership in retirement and options, including downsizing and reverse mortgages. The booklet includes graphics and checklists, helpful examples and list of other helpful "decision aids" available on their website.
The Bureau of Justice Administration (BJA) along with Center for Public Safety and Justice have released a guide for law enforcement on dealing with individuals with Alzheimer's. Alzheimer's Aware: A Guide for Implementing a Law Enforcement Program to Address Alzheimer’s in the Community is designed to help law enforcement create a community program to deal with the potential interaction with a person with Alzheimer's. This booklet identifies a number of scenarios when an officer might interact with a person with Alzheimer's. The tools provided by this initiative is designed
to assist in the development and implementation of a community educational campaign by, or n partnership with law enforcement. The resources have recommendations for developing a strategic plan with practical action steps and activity implementation, in order to develop a holistic community approach to responding in crisis situations, involving persons with Alzheimer’s disease, as well as increase awareness of Alzheimer’s and other forms of dementia.
The booklet includes recommendations for law enforcement to develop a program on making their officers aware of Alzheimer's and the issues they may encounter. These include officer training, policy reviews, creation of a "local registry", encouraging the use of monitoring technology or wearable devices and collecting statistics.
Tuesday, February 10, 2015
With the shift from defined benefit pensions to 401(k)plans, the welfare of retirees increasingly depends on their ability to make sound financial decisions. This situation has raised concerns that the cognitive decline that comes with age could compromise the elderly’s decision-making ability and thereby their financial well-being. This brief, based on a recent study,1 addresses this issue using a unique dataset that follows a group of elderly individuals over time.
The report is divided into four parts: literature review, data, analysis and conclusion. The conclusion paints an interesting picture
The findings confirm that declining cognition, a common occurrence among individuals in their 80s, is associated with a significant decline in financial literacy. The study also finds that large declines in cognition and financial literacy have little effect on an elderly individual’s confidence in their financial knowledge, and essentially no effect on their confidence in managing their finances. Individuals with declining cognition are more likely to get help with their finances. But the study finds that over half of all elderly individuals with significant declines in cognition get no help outside of a spouse. Given the increasing dependence of retirees on 401(k)/IRA savings, cognitive decline will likely have an increas-ingly significant adverse effect on the well-being of the elderly.
As picked up by several news media sources, Pennsylvania's Office of Inspector General (OIG) released a statement on February 9, 2015 reporting that "from September 2014 through December 2014, [OIG] recovered more than $1.8 million in taxpayer funds from individuals who were ineligible to receive long term care benefits."
Further, OIG reported these actions resulting in "over $709,000 in cost savings for the same period. Cost savings represent future use of commonwealth funds that would have been expended for Long Term Care services on behalf of an ineligible individual."
The timing of this press release strikes me as interesting. I don't recall seeing a three-month report before, nor does the press release disclose any details about the number of "ineligible" individuals this report represents. The recent press release merely states:
"In some instances, individuals or their personal representatives fail to disclose to the commonwealth income and/or assets such as real estate, stocks, or pensions in order to qualify the individual for Medical Assistance benefits."
OIG makes an annual report on investigations and recoveries of all state funds, including long-term care. Pennsylvania's 2013-2014 Fiscal Year Annual OIG Report includes a statement that OIG "collected and cost avoided in excess of $9.9 million in long term care benefits." The conflating of recovery of "past" improper payments with "costs avoided" in the annual report makes it difficult to compare the more recent three-month report, covering the end of the calendar year, to determine whether it represents a significant change.
It is probably worth noting that the OIG head in 2014 was an appointee of outgoing Republican Governor Tom Corbett, while the new Pennsylvania Governor, with new appointments to make, is Democrat Tom Wolfe.
The Borchard Foundation Center on Law & Aging one again invites applications for fellowship grants, to fund new graduates from law schools to work in public interest positions in law and aging.
The deadline for applications for the 2015-16 grant cycle is April 15, 2015. The fellowship award period runs from July 1 of this year to June 30 of the following year, or for a calendar year to begin the month after the fellow's completion of a state bar examination.
Monday, February 9, 2015
I received an email recently from the National Center on Elder Abuse listserv about free training materials. The National Council of Certified Dementia Practitioners/International Council of Certified Dementia Practitioners are offering for free their toolkits and in-service materials through March 15, 2015. Sign up here for the free training materials. There is a wide array of topics available, including a large library of dementia topics and some on elder abuse. According to the website, the took kits include the following:
Free Power Point / Over Head In-services for Health Care Staff, Tests and Answers, Seminar Evaluation and Seminar Certificates
97 Ideas To Recognize Alzheimer's Disease and Dementia Care Staff Education Week
20 Reasons Why You Should Provide Comprehensive Alzheimer's Disease and Dementia Training to Your Staff by A Live Instructor
Dementia Word Search Games & Interactive Exercises
Movies and Books About Alzheimer’s You Don’t Want To Miss
Proclamation & Sample Agenda for Opening Ceremony & Sample Letter to Editor
Contest Entry Forms- Staff Education week
Alzheimer’s Disease Bill of Rights & Alzheimer’s Patient Prayer
Nurse Educator / In-service Director of The Year Nomination Form
Corporate and Associate Membership Forms
Songs to Inspire You
Letter to the Editor
Here is a description of the webinar
Elder self-neglect (ESN) represents half or more of all cases reported to adult protective services. ESN directly affects older adults and also their families, neighbors, and the larger communities around them. ESN has public health implications and is associated with higher than expected mortality rates, hospitalizations, long-term care placements, and localized environmental and safety hazards.
This webinar will describe results from a study using concept mapping to create a conceptual model of ESN and the items needed to measure it. ESNA indicators of self-neglect align into two broad categories: behavioral characteristics and environmental factors, which must be accounted for in a comprehensive evaluation. Discussion will focus on the clustering of items into the two categories and on the hierarchy of items which should represent severity of self-neglect.
To register, click here.
AARP has a fabulous video, using the voices of brave victims, to examine the Weapons of Fraud employed by con artists. The speakers span all ages (in fact, I think I saw a Penn State logo on one of the candid, younger victims), and thus the clear message is that anyone can be a risk.
The short (about 15 minute) and intriguing video seeks to inoculate viewers from the risk factors of the pitch. as discussed further on Boston College's Squared Away Blog.
I think one of the most useful parts of this video is identifying and naming the ways that standard marketing tactics are magnified and used to persuade individuals to participate in the con. The techniques include establishing a "phantom fixation," through promise of a sudden windfall that will be available to you and only you... if you just talk to them long enough (oh, and yes, send them money).
Law students will also appreciate the example of the "Miracle Shim" to demonstrate misuse of "social proof," "authority," and fake "scarcity," and other techniques.
Hat tip to ElderLawGuy Jeff Marshall, Esq. for these links.
Recently Elder Law Attorney Bob Anderson from Marquette, Michigan, spoke to law students at Dickinson Law on the theme of "planning" and his presentation stressed the importance of understanding long-term care insurance or, because our world loves acronyms, "LTCI."
Bob used his thirty years of experience in counseling families to outline key points, and to explain factors that have impacted the LTCI industry. I asked the students to summarize what they found to be most interesting and important. Their "takeaway" highlights included:
- LTCI is an important consideration, part of the same evaluation for insuring against "unacceptable" losses, that should take place in deciding whether to insure against home fires or early death, recognizing that such events are "unlikely" to happen, but can happen to a significant percentage of the population;
- LTCI has a "cost of waiting," both in terms of the potential to become "uninsurable" because of a disqualifying medical condition arising, and because of the cost increase in first time premiums as you get closer to the age of potential need; and
- The cost of LTCI has several important variables, which lawyers can help families understand when advising about planning options, including the term of coverage (e.g., 1, 3 or 5 years), the "elimination" period, the interaction with Medicare's 100 day maximum for post-acute care, and the need to consider inflation protection for the daily benefit.
Bob also talked about "hybrid" insurance products, combining life insurance with an LTCI option. I think it is safe to say that regardless of their goals after graduation, all of the law students came away with an appreciation for the need to understand all available options, including LTCI, in planning or advising for post-retirement needs.
One of our students, who is thinking about general practice, said that he can see clients asking questions about LTCI. Bob was excellent at reminding all of us that effective elder law and estate planning attorneys address more than just what happens after death.
Bob, whose diverse interests include cross-country ski racing and hockey, also provided a bit of surprise during his visit when he began speaking Russian -- and, I think, Ukrainian -- with our Russian and Ukrainian Law expert, Bill Butler.
We especially appreciate Pennsylvania elder law attorney Amos Goodall and the National Elder Law Foundation (NELF) for their roles in making this interactive program possible; the recording will be available to practitioners in the future through NELF's educational arm. Amos also addressed our students, adding important Pennsylvania specifics to the discussion.
In a timely coincidence, AARP has a newly published Money Column, on "Should I Buy Long-Term Care Insurance?"
Saturday, February 7, 2015
Driving home last evening, I had one of those "driveway" moments, where you don't want to shut off the car -- and thus the radio -- because a program on NPR is so compelling.
This time it was the Invisibilia story of Iggy Ignatius, born in India, but living in Florida. He decided to create a retirement community that looked like home, with low buildings, a courtyard, Bollywood movies, lots of Indian food, and lots of ... Indians. At first, his creative timing seemed all wrong, as he was opening the doors in 2008, on the threshold of what turned out to be a deep recession, hitting many Florida housing ventures hard. But, in fact, he sold out the first condo wing almost immediately, and success has apparently continued. Iggy has a theory for the popularity of his Indian retirement community:
"And at that time, he thinks, it's beyond your control. No matter who you are, you'll experience a deep primal desire to withdraw, like a salmon swimming upstream to the place of its birth to spawn and die. 'I think that is an animal instinct which we as human beings seem to have.'"
Hmmm. I'm not sure spawning salmon are experiencing the same motivations as elderly individuals, regardless of ethnicity. But, the story continued with a potential science-based explanation:
"Iggy is absolutely right, according to Jeff Greenberg, a professor of psychology at the University of Arizona. If you raise the specter of death in a person's mind, he says, Christians like Christians better; Italians like Italians better. Even Germans, who are usually pretty lukewarm about other Germans, if you get them to contemplate their own mortality, suddenly they really like Germans...."
Thus, if true, there is a potential dark side to a "return to kind," both in terms of the subconscious fears that may drive it, and the impact on community and society.
Does this make sense to you? To read or listen to the whole story, go to "Being With People Like You Offers Comfort Against Death's Chill."
Friday, February 6, 2015
I recently watched the movie, The Judge, starring Robert Downey, Jr. and Robert Duvall, among others. The premise of the movie is interesting and there's even a good thread about ethics (especially Rule 1.1) running through the movie. What caught my eye toward the end of the movie is (spoiler alert) the use of compassionate release. Although we may cover this in our classes, I don't know that I've seen that crop up in movies. So, I'm thinking of adding this movie to my list for my elder law class. Any movies you think should be on the list?
The Washington D.C. Bar has a feature article on elder abuse in February issue of its Washington Lawyer. It begins with a comparison of Brooke Astor's history to a "quiet" case of exploitation in the District:
"The issue of elder abuse made front-page news in 2009 when famed philanthropist Brooke Astor’s son, Anthony Marshall, was convicted on 14 of 16 counts for financially exploiting his mother, stealing millions of dollars from her. A few years earlier in the District of Columbia, a similar case played out on a much smaller scale and away from the media glare.
D.C. resident Hattie Mae Goode was a housekeeper who, along with her husband, had scrimped and saved, bought a house (in which she took great pride), and wanted to be independent in her elder years. Several years after her husband died, Goode was introduced to Reginald Rogers by a mutual friend. Rogers, a lawyer, soon became indispensable to Goode, taking her to doctor appointments, to the bank, and eventually obtaining power of attorney over her.
'She trusted him to take care of her and her financial affairs, which turned out to be a very bad idea. He just cleaned her out,' says Goode’s niece Alma Robinson, who is executive director of the California Lawyers for the Arts. 'It was such a horrible story. This widow by herself with nobody looking after her, and then he convinces her that her family is trying to take advantage of her,' Robinson says. Cases such as Goode’s and Astor’s are all too common, say experts, yet the issue of elder abuse often goes unnoticed."
While much of the article sounds familiar, in terms of the recitation of predicted numbers of victims and the sad facts uncovered in actual investigations, the article also points to an interesting "new project" launched in October, the "District's Collaborative Training and Response to Older Victims," or DC TROV. For more on this new team approach, read "Breaking the Silence on Elder Abuse," by Kathryn Alfisi.
H. R. Moody edits an electronic newsletter, called "Teaching Gerontology," under the auspices of the Creativity, Longevity & Wisdom Program at Fielding Graduate University in Santa Barbara, California. It is distributed by the Association for Gerontology in Higher Education. A recent newsletter contained this interesting item:
"We've all heard that famous statistic: only 4% of people over 65 are in a long-term care facility (sometimes called simply "nursing home"). But there's a reason why this statistic has been called the "4 Percent Fallacy." The reason is that it's simply a cross-sectional figure, a snapshot at a single point in time. What is the likelihood of being in a long-term care facility when we look at it longitudinally, that is, over the life-course? The bad news is that the risk is not 4% but more like 50%: 44% for men and 58% for women. The good news is the stays in a nursing home may not necessarily be long: 11 months for a single man and 17 months for a single woman."
H.R. Moody suggests that for more details, visit:http://crr.bc.edu/briefs/long-term-care-how-big-a-risk/
Further, he notes that CRR's calculation of average length-of-stay has been challenged and is worth closer examination: http://centerltc.com/bullets/latest/1070.htm
Thursday, February 5, 2015
Eleanor Feldman Barbera, a long-term care psychologist, writing for professionals in long-term care settings, offers wise advice that is relevant for any professional, about the importance of empathy and validation in addressing client concerns. She begins:
"As a long-term care psychologist, one of my main tasks is to sit down and talk in-depth with residents on a regular basis. I've basically conducted 20 years of focus groups. The single most common comment I've heard from residents over the years: 'I never thought I would end up in a place like this.'
While it's probably not the case for people who entered swanky continuing care retirement communities of their own accord well in advance of a health crisis, many residents feel like it's a personal failure to be in long-term care. They think if they'd done something different, or earned more money, or if they'd had children, or had a better relationship with their children, or if they had better children, or something, then they wouldn't have 'ended up' in a long-term care home."
For her specific advice, read "Addressing Residents' Deepest Fears," from McKnight's Long-term Care News.
Wednesday, February 4, 2015
Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care. In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:
"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.
Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.
Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”
The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure. The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:
"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.
One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.
Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.
But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."
The full articles are interesting -- we will link to any future parts of this bold series.
February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)