Elder Law Prof Blog

New Report on Nursing Homes

The Long Term Care Community Coalition has released a new report, Safeguarding Nursing Home Residents  and Program Integrity A National Review of State Survey Agency Performance. The 30 page report looks at several topics, including resident harm, inappropriate use of antipsychotic drugs , staffing and treatment of pressure ulcers. The report makes a series of recommendations for CMS and state survey agencies:

1. Re-commit to their mission as enforcement agencies. Residents and their loved ones depend on enforcement agencies to ensure that providers are meeting - or exceeding - standards of care. Tax payers depend on CMS and the SAs to assure financial integrity of the billions of dollars spent each year on nursing home care. However, too often (in our experience), CMS and the individual SAs treat the industry as their client, and its interests as paramount, rather than those of the residents, their families and tax payers.

2. Improve resource allocation. CMS and the SAs should be dedicating their limited resources to fostering vigorous oversight, not training, engaging or otherwise trying to encourage providers to attain the minimum standards of care for which they are already being paid to achieve...

 

3. Comply with federal Survey Agency requirements. CMS and the SAs should focus efforts on achieving both the letter and the spirit of the law, regulations and the State Operations Manual....

 

4. Improve performance assessment & integrity.

a. CMS and the SAs should improve training and direction of surveyors...

b. The SAs should collect and assess data on their survey teams’ identification of deficiencies and identification of harm and assess these data in relation to relevant measures (including, inter alia, antipsychotic drug use, staffing levels and pressure ulcer rates)...

c. CMS should conduct, on a regular basis, similar performance assessments of the SAs and the CMS Regional Offices to identify and address weaknesses in quality assurance and oversight. CMS should include in its assessment an analysis of SA complaint handling that includes review of a sampling of actual complaints to determine if they were appropriately investigated and resolved.

 

Thinking About Fiduciary Duty As A Core Concept for "Elder Law"

I tend to think of "Elder Law" as a subset of "Laws and Policies of Aging."  Given what appears to me to be a steady increase in public concern about ways in which some older persons are exploited financially, it occurs to me that we may be at a point where "fiduciary duty" is becoming a central -- perhaps even the central -- concept for the future practice of Elder Law, overtaking even Medicaid planning and end-of-life health care planning. Seasoned practitioners already know that the "million dollar question" in Elder Law is "who is my client?" -- a question intimately tied to carrying out fiduciary duties as an attorney.

Along that line, I've been digging into my stack of "must read" books, a stack that is always a threat to my safety as it gets taller and taller no matter how fast and furiously I read. I'm very much enjoying a book by Boston University Law Professor Tamar Frankel titled, simply enough, Fiduciary Law (Oxford University Press, 2011). 

Early in the book, the author, whose teaching and research interests include corporation governance and regulation of financial systems, proposes a definition of "fiduciary relationships," which I find both intriguing and conducive to discussion.  I don't think it is taking too much away from her full book, to repeat the four features Professor Frankel proposes as triggering fiduciary duties.  She writes:

Continue reading

New Report-Boomer Retirement Preparedness

The Insured Retirement Institute (IRI) has issued its 5th annual report on Boomer Retirement Preparedness. Boomer Expectations for Retirement 2015 Fifth Annual Update on the Retirement Preparedness of the Boomer Generation is a 24 page report, and offers the following "key observations":

• Overall economic satisfaction among Boomers dropped precipitously in 2015, to 48% from 65% in 2014 and further down from 76% in 2011.
• The decline in overall satisfaction was more pronounced among retirees, plunging to 45% from 72% in 2014, versus 53% of working Boomers feeling satisfied compared to 60% in 2014....
• Only six in 10 Boomers report having money saved for retirement, down sharply from prior years when approximately eight in 10 had retirement savings.
• A significant number of Boomers continue to struggle financially; in the past 12 months: 
•     Almost one-quarter of Boomers reported that they have had difficulty in paying their mortgage or rent. 
• 19% of working Boomers stopped contributing to a retirement account such as a 401(k) or IRA. 
• 24% of Boomers postponed plans to retire.
• The percentage of Boomers feeling extremely or very confident they will have enough money to last throughout retirement has declined significantly, to 27% of Boomers in 2015 from almost four in 10 in 2011.

The report discusses a number of topics including annuity ownership, economic life satisfaction,  short term and long term financial outlook,  retirement expectations, retirement planning, planning for negative results,  and the advantages to using financial advisors.

The report concludes

As a group, the Baby Boomer generation is feeling less confident in their prospects and preparations for a secure retirement, and are more concerned about specific aspects of retirement such as medical expenses, children’s educations, and long term care. Paradoxically, however, many believe they will enjoy a more secure retirement than their parents did, and even those with relatively little saved for retirement and no pensions expect to enjoy travel and leisure activities in retirement in addition to paying for their basic needs and medical costs. While this may be unrealistic for many, the study finds that Boomers who work with financial advisors, and those who own annuities, are far more likely to have set goals, to have saved (and saved more) for retirement, and to feel both more economically satisfied currently and better prepared for retirement.

 

Systemic Concerns about Adult (Including Older Adult) Guardinships in Nevada

After my blog piece earlier this week about "elder guardianship" concerns in Florida, I've received communications about similar concerns in other states, including Nevada.

According to a report by Contact 13 (ABC affiliate), on April 21 Commissioners in Clark County (Las Vegas area) conducted a "first-of-its-kind" hearing on alleged guardianship abuses that were described by some as "appalling, frightening and plagued by problems." At the heart of the complaints by individuals and family members was frequent court appointment of "private guardians" rather than family members, and an alleged absence of notice to family members about court hearings. A "blue ribbon" panel or expert may be appointed to audit Clark County's court-supervised guardianships.  A recent statement by the Chief Judge for the district court, set forth in full on the Contact 13 website, pledges the court's commitment to "ensuring clarity and instilling public trust in the process of handling guardianship cases.

According to the Las Vegas Review-Journal, the Chief Judge's response follows a series of stories by the Review-Journal about "thousands of elderly and mentally ill in Clark County open to exploitation."

As reported by the Las Vegas media, the problems reported in Nevada are not unique to one county or even to one state, as demonstrated by an Associated Press series of articles in 1987 titled "Guardianships of the Elderly: An Ailing System."   See also the national Center for Elders and the Courts for more information on guardianship reforms in state courts.

Related articles

Elder Law Prof Blog

States Struggle to Pass Health Care Reforms (And PA is a Prime Example)

While much is written and talked about "gridlock" in the Nation's Capitol, state legislatures can also be locked in political battles or internal power struggles that delay even "agreed" reforms, including health care reforms.  In Pennsylvania, it often takes several sessions and multiple introductions of the same legislation to get a bill to a final vote.  Here is a window into the delays, provided by WITF Radio:  Persistence, Hustle Needed to Turn A Health Care Bill Into Law, by Ben Allen. 

Medicare to Stop Using SSN

Another change from the Medicare Access and CHIP Reauthorization Act of 2015 is that Medicare will stop using beneficiary Social Security numbers on the Medicare cards. Section 501 of the new law provides that

The Secretary of Health and Human Services, in consultation with the Commissioner of Social Security, shall establish cost-effective procedures to ensure that a Social Security account number (or derivative thereof) is not displayed, coded, or embedded on the Medicare card issued to an individual who is entitled to benefits under part A of title XVIII or enrolled under part B of title XVIII and that any other identifier displayed on such card is not identifiable as a Social Security account number (or derivative thereof).

This will appear in 42 U.S.C. 405(c)(2)(C)(xiii).  The changes won't necessarily occur immediately and "shall apply with respect to Medicare cards issued on and after an effective date specified by the Secretary of Health and Human Services, but in no case shall such effective date be later
than the date that is four years after the date of the enactment of this Act." The same holds true with reissuing cards; HHS has up to 4 years from the date the Secretary picks for the new cards.

This is a critically important step, what with the rise of identity theft.  It has been a long time coming.

Finally.

Upcoming Webinar: U.S. Department of Justice and Fraud Schemes Targeting Older Americans

U.S. Department of Justice and Fraud Schemes Targeting Older Americans

1. Wed, May 27, 2015 1:00 PM - 2:30 PM CDT

Show in My Time Zone

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Attorneys from the Department of Justice’s Consumer Protection Branch will describe fraud schemes targeting older Americans, including Jamaican lottery scams and large-scale psychic schemes. The crimes, perpetrated through mass mailings and telemarketing, affect hundreds of thousands of U.S. consumers. Presenters will describe how the scams contact victims, the manner in which they operate and the Consumer Protection Branch’s interception and prosecution efforts. The webinar will also address tips on how to avoid the scams and improve prevention efforts.

Presenters:
Rich Goldberg (Assistant Director, U.S. Department of Justice, Consumer Protection Branch); Kate Drenning (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch); Ann Entwistle (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch)

Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living. This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.

There is no charge for this webinar.
All time listings are in Eastern Time.
If you have any questions email [email protected]

Is Georgia A Window Into Political Influence of State Nursing Home Lobbies?

According to the Atlanta Journal-Constitution, the "long-time head of [Georgia's] powerful nursing home lobby has resigned after months of internal differences."  The resignation appears to be about more than just internal politics, perhaps implicating state ethics.  AJC explains:

"The resignation of Jon Howell, first reported by Georgia Health News, came only a few months after he told lawmakers that the industry didn’t need all of the money Gov. Nathan Deal recommended as part of  a rate hike for select nursing homes. Several of those nursing homes are owned by one of Deal’s top contributors. But one state official said the 'civil war' within  the organization began before this year’s General Assembly session.

 

The nursing home association is a major player at the statehouse, and owners have a big stake in what happens at the Capitol. The state pays more than $1 billion a year to nursing homes to care for Georgians. Owners have long been politically active, donating big money to state leaders and lawmakers who fund  reimbursements. Earlier this year, Deal recommended that select nursing homes get a $27 million a year rate increase, a bump stalled by the Department of Community Health board last year...."

Separate articles in the AJC indicate that federal CMS authorities are now seeking millions of dollars of reimbursement for Medicaid payments made to 34 specific nursing facilities, although whether this claim correlates with the governor's recommended rate increase is not clear from the articles.  State officials are reported as disagreeing with the federal CMS ruling that triggers the reimbursement claim.

Recent rate increases recommended by the Georgia governor were rejected by Georgia's General Assembly. Additional coverage on the Georgia nursing home industry's organization is provided by McKnight's Long-Term Care News. 

I suspect the Georgia stories are part of a bigger picture.  Compare, for example, Al Jazeera's America Tonight report from April 2014 on The Whopping Political Power of the Florida Nursing Home Lobby, describing the nursing homes advocating for placement of children into facility-based care.

National Senior Investor Initiative

On April 15, 2015 the SEC and FINRA issued a report, National Senior Investor Initiative. Together the SEC Office of Compliance Inspections & Examinations and FINRA conducted a review of 44 broker-dealers to look at "how firms conduct business with senior investors [65 and older] as they prepare for and enter into retirement." The examinations looked a long list of items in broker-dealer interactions with clients 65 and older, including "how firms address issues relating to aging (e.g., diminished capacity and elder financial abuse or exploitation)..."

This report highlights recent industry trends that have impacted the investment landscape and prior regulatory initiatives that have concentrated on senior investors and industry practices related to senior investors. Additionally, the report discusses key observations and practices identified during the recent series of examinations.

The 42 page report, after providing background on the initiative, discusses 9 topics, including documentation, disclosures, complaints, training, supervision, suitability, marketing, "senior designations" and securities purchased.  Each section contains a conclusion as well as "notable practices."  The overall conclusion includes this excerpt

The current environment, where traditional savings accounts and other conservative investments are earning historically low yields, may prompt firms to recommend and senior investors to purchase more non-traditional securities, such as variable annuities, non-traded REITs, structured products, and other alternative products. OCIE and FINRA staff are concerned that broker-dealers may be recommending unsuitable securities to senior investors or failing to adequately disclose the related risks. It is imperative that senior investors receive proper and understandable disclosures regarding the terms and risks related to securities recommended to them, particularly non-traditional investments.

NPR: Drop-in Chefs for Seniors

Occasionally I feel a little "push-pull" from the different directions that writing about "laws and policies of aging" takes me.  One minute I'm writing about hunger for seniors in our nation's capitol, a dynamic driven by poverty, and then there is today's story from NPR on Drop-In Chefs Help Seniors Stay in Their Own Homes.   

"Part of the business plan is keeping the service affordable. In addition to the cost of the food, the client pays $30 an hour for the chef's time. That's usually a couple of hours a week of cooking and cleaning up the kitchen. There's also a $15 charge for grocery shopping. So clients pay on average $45 to $75 a week.

 

And while there are lots of personal chefs out there and services that deliver meals for seniors there are few services specifically for older adults that prepare food in their homes."

All part of the big, complex picture of "aging." 

Related articles

Drop-In Chefs Help Seniors Stay In Their Own Homes

News Reports Spotlight Guardianship Issues in the Sunshine State

Recent news reports in the Sarasota Herald-Tribune have focused on "elder guardianships" in Florida.  The articles include:

• The Kindness of Strangers: Inside Elder Guardianship in Florida, a three part "special project."
• A Civil Dispute Over Guardianship, detailing a conflict between co-trustees for a man in his 90s over costs of care.  One trustee was concerned about what appear to be charities named as remainder beneficiaries and was described as making "imaginative" use of a guardianship to challenge the wife's role as the other named trustee.  A sidebar in this article describes bills pending in the Florida legislature seeking to clarify the legal effect of a "power of attorney" when a guardianship petition is filed. 
• Film to Detail Horror Stories from Florida Guardianship, describing a video project to share "stories about Florida's adult guardianship system," supported by a local "nonprofit organization called Americans Against Abusive Probate Guardianship."

Iowa's New Law Recognizes Rights of Communication and Visitation in Guardianships

On April 24, 2015, Iowa's Governor signed SF 306 into law, amending Iowa's Guardianship Law to recognize an express right of adult wards to "communication, visitation, or interaction with other persons." The law's effective date is July 1, 2015.

The law further provides that a court shall deny such rights "only upon a showing of good cause by the guardian."  In the absence of an ability to give "express consent to such communication, visitation or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person."

This is an interesting law, especially coming on the heels of the Henry Rayhons trial in Iowa, even though there appears to be no direct correlation. The new provision does not, for example, define "interaction."

According to news reports, Kerri Kasem, the daughter of radio D.J. Casey Kasem, was present at the ceremony and lobbied for the bill after her late father was moved from his nursing home in California, first to Nevada and then to Washington without his children's knowledge or consent:

 “This is a silent epidemic,” she said. “There are so many abuses of guardianships and so many abuses of caretakers.”

Related articles

Iowa Law Arising From Kasem Case Ensures Adult Children Can See Sick Parents

Iowa law tries to ensure adult children can see sick parents

Iowa's governor signs vistation law inspired by Casey Kasem case

Cool Tool-Center for Financial Literacy in Retirement

The Center for Retirement Research-Center for Financial Literacy at Boston College has created a cool tool for folks to recognize bad behaviors that impact retirement.  According to the website

Curious Behaviors That Can Ruin Your Retirement is an interactive program on behavioral impediments to retirement planning. A host leads users through exercises designed to create an “Aha!” moment as they relate to the behaviors. The host then explains how the behavior can hinder retirement planning and how to cope with it. Users can then go to a “Learn More” page with additional information in various media formats.

The link to the tool is available here. It takes about 10 minutes to work through it. Check it out and have your students check it out as well!

 

NYT: Financial Skills May Be "First to Go"

Sunday's New York Times has a feature article on aging and financial skills, and the message is not "just" for individuals with dementia:

"Studies show that the ability to perform simple math problems, as well as handling financial matters, are typically one of the first set of skills to decline in diseases of the mind, like Alzheimer’s, and Ms. Clark’s father-in-law, who suffered from mild dementia, was no exception. Research has also shown that even cognitively normal people may reach a point where financial decision-making becomes more challenging."

The article gives several example of individuals who were vulnerable to exploitation, because of their reduced interest in or understanding of financial decisions. David Laibson, an economics professor at Harvard, one of the researchers cited in the article said "he believed that crystallized intelligence tended to plateau when people reached their 70s." Further, "he wishes all 65-year-olds would start by simplifying their financial lives, reducing the money clutter to just a few mutual funds at a reputable institution."

The article, As Cognition Slips, Financial Skills Are Often the First to Go, offers several links to recent reports and studies, as well as examples of "early signs."  

Hat tip to Penn State's Dickinson Law 1L student Spencer Flohr for sharing the link to this article -- and noting the probable relevance to law students' studies of trusts and estates law. Good catch!

Related articles

As Cognitivity Slips, Financial Skills Are Often the First to Go

How Should Decisions Be Made About Sexual Rights During Facility-Based Care?

For me, a chilling moment in the trial of State of Iowa v. Henry Rayhons came during the prosecution's case-in-chief, with the reported testimony of a physician at Mrs. Rayhons' nursing home.  According to the coverage of the trial, the doctor testified that based on her decreasing score on the BIMS (Brief Interview for Mental Status), he determined Donna Rayhons lacked the cognitive ability to give consent to sex.  In contrast, a defense expert was reported to have testified it was a "medical mistake" to have used such minimal evaluations of capacity to draw an arbitrary line between permission to kiss or hug, as opposed to engaging in more intimate relations. 

The contrasting testimony put a spotlight on the very serious questions of who makes decisions -- and how decisions are made -- about "capacity" to engage in essential behaviors such as sex for persons with dementia. This topic is further explored, with great prescience, by a law student at the University of Illinois in the current issue of the Elder Law Journal, written well before the Rayhons trial.  Stephanie Tang, who was also the managing editor for the journal in 2014-15, writes:

To best balance the interests of the elderly with those of the states, states should develop and adopt a model assessment tool that employs a clinical perspective to evaluate a person’s capacity to consent to sexual activity. Model assessment tools provide courts with a clear and objective standard, which would increase predictability and uniformity of court decisions.

 

Moreover, identifying specific cognitive functions that need to be assessed would constitute a major step forward in those states that have not yet done so.This Note advocates for the use of two tests: 1) the Socio-Sexual Knowledge and Attitudes Test (SSKAT) and 2) Cognisat. Authors have previously argued for the adoption of the SSKAT to assess sexual capacity to consent among mentally retarded patients. The American Bar Association and American Psychological Association cited use of Cognistat to assess cognitive capacity to consent to sexual activity among hypothetical patients with diminished capacity.

To put this simply, in her article,When "Yes" Might Mean "No": Standardizing State Criteria to Validate The Capacity to Consent to Sexual Activity for Elderly with Neurocognitive Disorders, Ms. Tang is arguing that far more sophisticated and appropriate tools are available and should be used to assist in evaluating capacity to participate in sex. Brava, Ms. Tang!

Ms. Tang's article draws in major part on the detailed factual reporting of Bryan Gruley for Bloomberg News, in his important series on rights of the elderly with dementia.  Mr. Gruley's articles began to appear as early as 2013, and became even more relevant with his investigation of the events underlying the 2014 charges against Mr. Rayhons.

Got an Idea? Maybe You Are an Inventor!

Are you an inventor?  Ever have a good idea for an invention?  There is a renaissance of sorts in American ingenuity with an increasing number of older Americans becoming inventors.  The NY Times ran a story about older inventors on April 17, 2015. More Older Adults Are Becoming Inventors notes this renaissance

Whether as volunteers or for profit, older inventors ... are riding a rising tide of American innovation. They are teaming up, joining inventors clubs and getting their products into the marketplace. And older inventors bring valuable skills to their work, many experts say, like worldly wisdom and problem-solving abilities that can give them an advantage over younger inventors.

According to the article, the Baby Boomers are at least part of the catalysts for this surge of older inventors, as the boomers look for products to assist them as they get older. According to one expert quoted in the article, older inventors may have an edge over younger ones, since "[a]n aging brain can see patterns better.”  Before you get out the proverbial drawing board, the article notes that inventions don't necessarily lead to wealth with less than 5% of inventions making money, not to mention the prototype and startup costs

Nation's Capitol Ranks Fourth for Elders at Risk of Hunger

As summarized in a recent article in the Washington Post, a new study places Washington D.C. fourth in the nation for seniors at hunger risk:   

"The report says that more than 20 percent of the District’s elderly have concerns about eating enough food or the right kind of food, compared with more than 24 percent of seniors in Mississippi.

 

The estimates of senior hunger range from about 8 percent in Minnesota to more than 26 percent in Arkansas, which was ranked highest among states where seniors face the threat of hunger. Virginia and Maryland both had rates of about 14 percent.

 

The analysis – conducted by two university researchers on behalf of the nonprofit National Foundation to End Senior Hunger and the National Association of States United for Aging and Disabilities – says nearly 15.5 percent of elders, or 9.6 million people, in the United States face the threat of hunger...."

My thanks to George Washington Law Professor Naomi Cahn for sharing this article. We agree -- depressing news. 

How Does Your Neighborhood Rate for "Aging in Place?" AARP Offers Livability Index

As outlined by The Washington Post, AARP Public Policy Institute has a new "Livability Index" offered as a way to evaluate factors such as safety, security, ease of getting around, access to health care, and housing affordability.

More intangible factors are also assessed, such as WiFi, farmers' markets and "public policies that promote successful aging."

(After following the trauma of the trial in Iowa, I wonder whether "criminal laws on sexual relations between husband and wives if one has dementia" should be added as an express factor?)

For more, read here and here.  Hat Tip to ElderLawGuy Jeffrey Marshall for the pointer. 

Justice in Aging: Webinar on New Person-Centered Care Rules

Justice in Aging (formerly National Senior Citizens Law Center) is offering a free webinar on Wednesday. April 29, from 2 to 3 p.m. (eastern time) on "How New CMS Person-Centered Care Planning Rules Apply to Medicaid Delivered Long-Term Services and Supports (LTSS)."

They report their webinar will focus on the rules as they apply to long-term services and supports delivered through Medicaid home and community-based waivers, and will:

• Provide background context for the new person-centered planning and service plan      rule
• Analyze the requirements of the new rule
• Give examples of how selected states (Minnesota, New Jersey, Tennessee, and Wisconsin) are implementing provisions of the rule
• Identify gaps where more detailed state rules or better managed care plan contractual terms are needed to ensure that compliance with the intent of the rule

Who should participate?  The program is suggested for health care professionals and their staffs, attorneys for consumers of LTSS services, and public employees --  and consumers, too. 

Here is the link for the registration. 

Living Longer and the Effect on Pensions

The Center for Retirement Research at Boston College released their April Brief on How Will Longer Lifespans Affect State and Local Pension Funding? The authors considered whether state and local governments are factoring in the increase in longevity into their budgeting for employee pensions. The authors use two alternatives to explore the answer: "1) if public plans were required to use the new mortality table designed for private sector plans; and 2) if public plans were required to go one step further and fully incorporate expected future mortality improvements." The article first discusses the current climate for these pensions, discusses a scenario illustrating longevity's impact on pensions and then covers the two options. 

The authors' conclusion might surprise you.  "The question underlying this analysis is whether outdated mortality assumptions are a serious problem among state and local plans. The answer appears to be "no."...  In short, public sector plans seem to be making a serious effort to keep their life expectancy assumptions up to date."  The brief also has an appendix with a table showing the "life expectancy and funded ratio" for various state and local government pension plans.