Elder Law Prof Blog

Report on Home & Community Based Services and Supports

The GAO has issued a new report on how Home  & Community Based Services & Supports are delivered.  Older Adults Federal Strategy Needed to Help Ensure Efficient and Effective Delivery of Home and Community-Based Services and Supports is a 60 page report that "addresses (1) federal programs that fund these services and supports for older adults, (2) how these services and supports are planned and delivered in selected localities, and (3) agencies’ efforts to promote a coordinated federal system of these services and supports."  The GAO recommends in the report "that HHS facilitate development of a cross agency federal strategy to ensure efficient and effective use of federal resources for HCBS. HHS concurred and HUD, DOT, and USDA did not comment." A number of topics are covered, including transportation, aging in place, information and referral, housing, in-home services, and food assistance. The report discusses the importance of cross-agency collaboration. The GAO concludes that

As the older population continues to grow, communities will find it increasingly difficult to meet the demand for the HCBS and supports many older adults will need to age in their own homes and communities. Based on recent trends, federal funding at AoA, HUD, and DOT for HCBS and supports is not likely to keep pace with demand for these services and supports, making it important to ensure that the federal resources available for this purpose are used effectively and efficiently. Development of a cross-agency federal strategy could better position the federal agencies to assist area agencies on aging and community-based organizations with providing HCBS and supports in the most efficient and effective manner. Under the Older Americans Act, AoA is responsible for facilitating the provision of home and community-based services and supports for older adults in this country, in coordination with CMS and other federal agencies. As a result, AoA is well-positioned to lead collaboration among the five federal agencies covered in our review. However, because of increases in Medicaid spending and emphasis on the role of HCBS in supporting health care patients, CMS has become an even more important partner to AoA in meeting older adults’ expected demand for HCBS. Thus, it may be most appropriate for the HHS Secretary to take the initiative in developing such a cross-agency federal strategy.

 

Alzheimer's Activist Confronts Challenges of His Disease

The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:

When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.

 

But to some, Ellenbogen’s passion recently went too far.

 

After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.

For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.

Looking to Cuba for Comparative Law, Aging and Health Studies

Light blogging ahead for me, as I will be leaving in a couple of days for my first visit to Cuba, as part of a small Penn State University faculty group.  I'm confident I will have plenty of things to do with my time other than searching for an elusive internet café!

Seriously, I'm excited, on a number of levels.  First, I lived for several years in a Cuban-immigrant neighborhood in Miami at the end of law school, and many of my fellow judicial clerks and friends were the first generation sons and daughters of Cuban refugees.  Second, I've been educated by my Irish friend, Dr. Una Lynch, to appreciate the world-wide significance of the Cuban health care system, and I'm eager to see how they accomplish much with comparatively few resources.  Third, my Elder Law colleague, Amos Goodall Esq., State College, PA, has shared great suggestions for art and food. Plus, Attorney Karen Miller (NY and Florida) has shared her contacts with me from her travels and studies about law in Cuba. ¡Gracias a todos!

Here are a couple of items from some of my background reading on Cuba, including health care and aging statistics:

Turning to Cuba, let us examine the possible consequences of the tendency towards population aging that we have described. In the economic field, the consequences include an accelerated demand for the funds to cover social security expenditures. In fact, since 1970 funds budgeted for old-age, disability and death benefits have quintupled.  National budget expenditures for social security are higher than those of any other sector (e.g. education, health, defense, etc.) (Cuban National Statistics Office, 1999 "c"). 

   

At the same time, as the average age of Cuba's workforce increases over the coming years, we will see a deficit of workers for labor requiring greater physical effort, especially for agriculture, construction and industry, among others.  Consequently, the main economic difficulty Cuba faces today-as it did during the colonial period and at the beginning of the 20^th century-is an insufficient workforce.

From Aging in Cuba, Realities and Challenges, byAlberta Duran Gondar and Ernesto Chavez Negrin.

During her recent visit to Havana in July of 2014, Margaret Chan, Director-General of the World Health Organization (WHO), impressed by the country's achievements in this field, praised the Cuban health care system: "Cuba is the only country that has a health care system closely linked to research and development. This is the way to go, because human health can only improve through innovation," She also praised "the efforts of the country's leadership for having made health an essential pillar of development." 

From Opera Mundi, translated into English for the Huffington Post.

New Survey on Retirement Readiness

Transamerica Center for Retirement Studies has issued their 16th Annual Retirement Survey of Older Workers.  Retirement Throughout the Ages: Expectations & Preparations of American Workers was released in May of 2015. The 81 page report offers a number of key highlights, including views by age group (in ten year increments). The report provides recommendations for workers, employers and policymakers. The report offers this conclusion  

Workers of all ages have similar challenges, dreams, fears, and expectations of retirement. Depending on their age and stage in life, they also face unique opportunities to improve their long-term financial security. Although it may seem overwhelming for many, taking one step at a time can lead to significant improvements over the long-term. The following three pages of these Key Highlights outline such steps for workers, employers, and policymakers.

It’s never too soon or too late to start saving and planning for retirement.

Join "Conversations Live" at WPSU-TV to Discuss "Caring for Mom & Dad"

You can join us via telephone or email this evening, May 28, starting at 9 p.m. (ET) to discuss the new PBS documentary, Caring for Mom & Dad that airs at 8 p.m. on WPSU-TV.  Our conversation begins at 9 p.m..  Details available here. 

A recording of today's "Conversations Live," hosted by Patti  Satalia, will be available about 48 hours after the original show for viewing on-line at WPSU.psu,edu.

Ohio Successfully Uses Local Property Tax Levies to Supplement Senior Services

In the PBS documentary airing in May and June, Caring for Mom & Dad, the second half of the program focuses on policy initiatives to support services for older adults. One interesting highlight is Ohio's use of local property tax levies that directly supplement senior services.  Begun in the early 1980s as a referendum initiative in just one county, similar programs have been adopted by voters in counties or municipalities in more than 70 of Ohio's 88 counties. That is an amazing history, especially given the usual hostilities about "new" taxes. Voters appear to recognize that the levies permit unique flexibility to design programs that meet the needs of their community's seniors, whether in rural or urban areas, such as transportation services or home care subsidies.  The revenue now generated in Ohio, more than $125  million per year, exceeds federal grant funding under the Older Americans Act nationally. 

Ohio's inspiring "Lady of the Levy," Lois Dale Brown, is mentioned in the PBS documentary, and she's profiled, along with additional details about the senior service levies, on the Ohio Department of Aging's website. 

As a reminder, WPSU-TV is airing Caring for Mom & Dad at 8 p.m. this evening in Pennsylvania, followed by a one hour "Conversations Live" open to incoming calls, texts and emails.  Details available here. 

Can You Get A Divorce if You Have Dementia? That's the $10M Question in South Florida

From our roving reporter (okay, actually from my great Dickinson Law colleague, Professor Laurel Terry) we get headline news in Palm Beach, Florida and a front-page question about whether an older man has the capacity necessary under that state's "unique" law to seek an end to his later-in-life second marriage.  You won't be surprised to read that money is involved in this lawsuit: 

Sitting in his oceanfront condominium in Palm Beach, [87-year old] Martin Zelman can’t immediately name the president of the United States, isn’t sure what year it is and admits he can’t remember the month or the date of Valentine's Day. But he knows he wants to divorce his wife [age 80], whom he married in 2000, 7 years after they began dating.

 

Or does he?  That's the $10 million dollar question that surrounds Zelman vs. Zelman, a unique and legally complex divorce case wending its way through Palm Beach County Circuit Court.

 

While the issues raised are intensely personal, they lay bare the ways adult children could use the court system to manipulate prenuptial agreements designed to protect spouses in second marriages. They also expose quirks in Florida's divorce laws, particularly a little known caveat that imposes a three-year waiting period in cases where one of the spouses has been declared mentally unfit.

For more, see Can Florida Man with Dementia File for Divorce? by Jane Musgrave for the Palm Beach Post. This story brings to mind regular reader Jennifer Young's recent, wry comment on a separate post, strongly recommending "shacking up" to avoid late-in-life second guessing of second marriages.  All kind of sad, isn't it?

New Study-Family Caregivers in 3 Countries

On several occasions we have blogged about the increasing need for family caregivers. Thus the new report from Pew Research Center is quite timely.  Family Support in Graying Societies: How Americans, Germans and Italians are Coping with an Aging Population was released in May 2015. The purpose of the report is to provide an

understanding intergenerational relations in three countries that are undergoing rapid aging – the United States, Germany and Italy. Parallel surveys were administered in these three countries, the grayest of the West’s advanced economies, to explore the ways in which families are coping or providing support across generations as they experience this major demographic shift. The surveys were conducted among 1,692 adults in the United States, 1,700 in Germany and 1,516 in Italy, from Oct. 27 to Dec. 18, 2014.

The report is divided into six sections, including demographics & financial profiles,  family providing care, aging in the 3 countries, helping parents, helping the kids who provide care and keeping in touch. There is very valuable information in the report.  The full report runs 59 pages and is available here.

Book Recommendation: Ai-Jen Poo's "The Age of Dignity"

In my preparation for an upcoming talk show on WPSU on "Caring for Mom & Dad," I had the incentive to get to my stack of "must read" books to focus on The Aging of Dignity: Preparing for the Elder Boom in a Changing America, by Ai-Jen Poo (New Press 2015).  What I very much like about this book is the broad lens it brings to aging demographics, focusing not on "burdens" but on "opportunities" to be a more productive, healthy society by dealing realistically with the need for both professional caregivers and family caregivers.  Ai-Jen Poo writes:

Aging at home necessitates home care workers.  Yet the 3 million people currently in the home care workforce cannot meet even the current need, let alone the demand for care that will accompany the elder boom. We will need at least 1.8 million additional home care workers in the next decade. As a result, care giving, specifically home care, is the fastest growing of all occupations in the nation....

 

With some course corrections in our culture and in our institutions, we can have the care infrastructure that will enable us to live our full potential. . . . The moral of this story is that a caring America is entirely within reach.

Not surprisingly, given her inspiring call for action, Ai-Jen Poo was a MacArthur "genius" grant recipient in 2014.  She is one of the commentators on Caring for Mom & Dad, and in Pennsylvania,  she will be part of our panel for WPSU's Conversations Live following the airing of the documentary on Thursday, May 28.  The documentary is at 8 p.m., and the audience can "call-in, e-mail or text-in"beginning at 9 p.m.  More details and links available here about the documentary and schedules here. 

How Much Money Will You Have at the End of Your Life?

The Employee Benefits Research Institute (EBRI) published a note in April, 2015 that looked at the question of how much money people have at the end of their lives.  A Look At the End-of-Life Financial Situation in America. Here is what the study examined

This report takes a comprehensive look at the financial situation of older Americans at the end of their lives. In particular, it documents the percentage of households with a member who recently died with very few assets (total assets as well as non-housing assets). It also documents income, debt, home-ownership rates, net home equity and the share of their income coming from Social Security benefits for those households.

This report is useful as part of the work by EBRI in looking at retirement security and whether people will have sufficient funds to last the rest of their lives.  Here are some bullets from the conclusion:

• For those who died at ages 85 or above, 20.6 percent had no non-housing assets and 12.2 percent had no assets left.
• Among singles who died at or above age 85, 24.6 percent had no non-housing assets left and 16.7 percent had no assets left.
• Those who died at earlier ages were generally worse off financially: 29.8 percent of households that lost a member between ages 50 and 64 had no assets left. 
• People who died earlier also had significantly lower household income than households with all surviving members. 
• Among singles who died at ages 85 or above, 9.1 percent had outstanding debt (other than mortgage debt) and the average debt amount was $6,368. 
• The average net equity left in their primary residence for those who died at ages 85 or above was $141,147 and $83,471 for couple and single households, respectively.

Lisbon Arts Organization Engages Seniors to Make Street Art

Via Colossal:

LATA 65 is connecting art between generational divides, matching older citizens of Lisbon with a relatively young form of art—graffiti (“lata means “can” in Portuguese). stencils and tags, ultimately incorporating their work in murals across the city. These bright colors go into run-down parts of the Lisbon, and each new artist is aided by the help of well-known street artists.

The goal of LATA 65 is to eliminate the many cliches that come with street art by widening both its audience and participants. Through introducing the art of graffiti to a different group of makers, the project hopes to create a solidarity between all groups involved while adding some colorful designs to the city along the way

Read more here.

Related articles

The Grandmothers Graffiti Gang

Delinquent Grandmothers Living A Secret Life As Graffiti Artists... And It's EPIC.

The elderly are introduced to urban art in Lisbon, Portugal

The Effect of Rising Levels of Acuity in Rehab and Nursing Homes on M&A Activity

Here is an interesting item from a recent Senior Care Investor News, published by Irving Levin & Associates:

"The rise in acuity in post-acute care is certainly having its impact in the skilled nursing M&A market. Historically, the range in price per bed for skilled nursing facilities has been approximately $100,00 to $125,000 per bed, according to the 2015 Senior Care Acquisition Report. Every year, there are always sales between $10,000 and $20,000 per bed, with the occasional sale below $10,000 per bed. And there have always been sales above $100,000. But in 2014, while the low price was a typical $9,000 per bed, the high was an astounding $268,500 per bed, resulting in a spread of $259,500. There was also a record number of deals valued over $100,000 per bed, with 19 transactions, which just goes to show the rise in acuity is pushing up prices across the board."

What would be driving the market for "skilled" beds to a higher figure, especially given the continued dependence on Medicaid as the primary payer for skilled care, combined with the fact that Medicaid pays below (and arguably significantly below) actual costs of skilled care?  This market data seems illogical to me, and I'm sure I'm missing something.  

The Affordable Care Act & Medicaid Expansion

A new report from the AARP Public Policy Institute/Urban Institute highlights the positive impact of Medicaid expansion for the 50-64 age group. Monitoring the Impact of Health Reform on Americans Ages 50–64 notes that "[t]he Uninsured Rate for 50- to 64-Year-Olds Dropped 31 Percent since December 2013."

The abstract for the report offers that

New data from the December 2014 Health Reform Monitoring Survey show that the share of Americans ages 50 to 64 without health insurance fell by nearly a third, from 11.6 percent to 8.0 percent, between December 2013 and December 2014. States that chose to expand eligibility for their Medicaid programs saw a larger drop in uninsured rates among 50- to 64-year-olds than states that did not. Overall, the number of 50- to 64-year olds with health coverage increased by approximately 2.2 million between December 2013 and December 2014.

The report determines that "Medicaid expansion was a clear driver of the reduction of the uninsured rate among 50- to 64-year olds."

The full report is available here.

Modern Day Coverture? Medicaid Eligibility Rules' Harsh Effect on Married Women

University of South Dakota Assistant Professor of Law Thomas E. Simmons has an intriguing article in the summer 2015 issue of Hastings Women's Law Journal.  From his article, "Medicaid as Coverture," here are some excerpts (minus detailed footnotes)  to whet your appetite:

Not long ago, married women possessed limited rights to own separate property or contract independently of their husbands.  Beginning in the nineteenth century, most of the most serious legal impediments to women enjoying ownership rights in property and freedom of contract were removed....

 

Three twenty-first century developments, however, diminish some of this progress.  First, later-in-life (typically second) marriages have become more common.... These types of couples were not the spouses that reformers had in mind in designing inheritance rights or other property rights arising out of the marital relationship....

 

Second, perhaps as a product of advocacy for women's property rights, and perhaps out of a larger social remodeling, women's holdings of wealth have made significant advances.... [But] women of some wealth (in later-in-life marriages, especially) may in fact find themselves penalized by the very gender-neutral reforms that were designed to help them; especially, as will be unpacked and amplified below, when those reforms interface with Medicaid rules.

 

Third, beginning in the late twentieth century, the possibility of ongoing custodial care costs became the single greatest threat to financial security for older Americans.

As practicing elder law attorneys experience on a daily basis, Medicaid eligibility rules, despite the so-called "Spousal Impoverishment" protections, can impact especially harshly on married women as the community spouses.  They are often younger and thus will have their own financial needs, frequently have been caregivers before being widowed, but their personal assets may still be included in the Medicaid estate for purposes of determining their husbands' eligibility. This article takes a critical, interesting approach to that problem.  

More on "Right to Try" Laws

Professor Rebecca Dresser has written a column on "right to try" laws.  "Right to Try" Laws: The Gap between Experts and Advocates was published in the May-June 2015 Hastings Center Report.  The abstract for the column provides

The year 2014 brought a new development in the bioethics “laboratory of the states.” Five states adopted “right to try” laws intended to promote terminally ill patients’ access to investigational drugs. Many more state legislatures are now considering such laws. The campaign for right to try laws is the latest move in an ongoing effort to give seriously ill patients access to drugs whose safety and effectiveness remain largely unknown. Although scientists and policy-makers oppose the right to try approach, it has proven quite popular among state legislators and the public.                

A subscription is required for the full article.

Removal of Private Guardian Is Latest News in Challenge to Nevada Elder Guardianships

As we described last month, Nevada is one of the states facing serious "elder guardianship" concerns, and specifically concerns about court-appointed, fee-paid private guardians. This week, a Nevada court removed a guardian in one of the cases at issue, calling the problems observed "enormous" and "more than technical." The court commissioner who granted the requested relief continues to be the focus of other inquiries about his supervision of private guardians.  Contact 13 News described matters revealed in its own investigation and presented in court:

Since the fall of 2013, the court has allowed [the guardian] Parks to control every aspect of [an elderly married couple's] lives--where they would live, how their money was spent, what items they could keep--and sometimes, who they could see.

 

"They took my parents," said Julie.  "I didn't know who. I didn't know what."

 

When Contact 13 looked at the guardianship case, we found mistakes, over-charging and double-billing by [guardian] Parks.  Our findings played a key role in Wednesday morning's hearing.

 

"She's costing me $300 an hour to sit here and degrade me and my family," Rudy said. "I will not stand for it and I will not pay for it."

 

Parks' attorney did the talking for her, claiming the process to remove Parks is being rushed, "...based on innuendo, based on hearsay, based on salacious representations made on the media about Ms. Parks," said Aileen Cohen. "This matter is turning into a witch hunt."

 

But Commissioner Jon Norheim was having none of it.  "The idea that she's been compliant? Not even close."

For more about the ongoing inquiry into alleged abuses by private guardians in Nevada, see Couple Liberated from Guardianship System, by Kean Bauman, for Channel 13 News, KTNV, Las Vegas, Nevada. 

UPDATE:  Before the virtual ink had even dried on my posting above about one couple's case, additional word comes that the Chief Judge of the Eighth Judicial District, Clark County, Nevada has ordered systemic review and immediate changes in the guardianship appointment and oversight authority. For the Court's important May 21, 2015 order, see here. Additional details are available from the Las Vegas Review Journal.  

Is There A Role for Mediation in Prevention of Financial Abuse of Older People?

In the May 2015 issue of Conflict Resolution Quarterly, four authors use quantitative and qualitative data collected in Australia to identify risk factors for the financial abuse of older people by a family member, analyze the potential usefulness of mediation as a strategy to prevent this form of elder abuse, and to identify knowledge and skills important to mediators facing potential financial abuse.

The authors note that mediation is in the early stages of consideration as a strategic tool for combating financial elder abuse, and thus much of their report focuses on "potential" risks or benefits of mediation, rather than instances of its use.  Nonetheless their study leads to interesting conclusions, including:

Potential advantages:

(1) enhancing the rights and wishes of older people,

(2) opening and facilitating communication between family members and older persons,

(3) enhancing accountability and responsibility of family members, and

(4) reducing family conflict.

The authors also identify potential concerns, including:

Continue reading

$10+ Billion Dollar Deal: CVS Health to Buy Pharma Giant Omnicare

 Anyone who's noticed the upsurge in M&A activity in the senior care industries will want to take special notice of today's news, with the announcement that CVS Health will spend $10.4 billion to buy Omnicare, thus giving CVS an even stronger pipeline for prescription drug distribution to the elderly.  (In 2006, CVS acquired Caremark Rx Inc. for a reported $21 billion.)

The Los Angeles Times reports:

The deal announced Thursday will give one of the nation's biggest pharmacy benefits managers national reach in dispensing prescription drugs to assisted living and skilled nursing homes, long-term care facilities, hospitals and other health care providers. Omnicare's long-term care business operates in 47 states and the District of Columbia. With more people entering assisted-living residences as the U.S. population ages, CVS Health says there is a "substantial growth opportunity" for companies serving those patients.

 

Cincinnati's Omnicare also provides pharmacy consulting and runs another segment that provides specialty pharmacy services. Specialty drugs are complex medications that treat certain forms of cancer or hepatitis C, among other conditions. They often represent treatment breakthroughs but can cost considerably more than other prescriptions. Use of these drugs is climbing, and insurers and employers are looking for help containing that cost.

This deal should keep a lot of lawyers busy! From The American Lawyer, news of four major law firms involved in the latest CVS acquisition.

UPDATE:  Here's an interesting editorial observation from an industry observer, describing Omnicare as the giant "lion of the jungle" who is now being gobbled up by giant CVS as the T-Rex.  Amusing, but apt, metaphors and observations about the potential implications for the public.

Related articles

CVS to spend $10.4B in cash to acquire Omnicare

Documentary on "Moving with Grace"

St. Louis Elder Law Attorney Martha Brown recently recommended a 2013 documentary, writing:  "It is called 'Moving with Grace.'  It is played a lot in St. Louis on the local PBS station as reporter Stone Phillips and his parents lived in St. Louis.  It is a wonderful documentary about the trials and  tribulations of aging parents without the drama of a dysfunctional family."  That is an important message, right?  The challenges associated with "growing older" can hit everyone, even the "best" of families.

American Public Television, that distributes the program, previews it and offers a link to scheduling in your area here, explaining:

Like many baby boomers, former NBC anchor Stone Phillips and his siblings found  themselves caring for their aging parents. Ninety-two-year-old Vic, a World War  II veteran, copes with chronic heart issues, although his mind and memory  remain "as reliable as a Bob Gibson fastball." Grace, his wife of 66 years,  suffers from dementia, which robs the once-gregarious former teacher of her  short-term memory. MOVING WITH GRACE, an intimate documentary Phillips produced  and shot, follows this charming couple as they move out of the family home in  Missouri and adapt to life first in a retirement community and later in an  assisted-living facility. This honest and, at times, poignant story highlights  the common struggles associated with elder care and its consequences.

Thank you, Martha, for sharing this resource!

Massachusetts Case Demonstrates Significance of Contracts in Senior Living Options

This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston.  Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living.  Their organization has some 800 individual members, representing a majority of the communities in the state. 

In 2012, MLCRA was successful in advocating for passage of amendments that substituted "shall" for "may" in the laws governing key disclosures to be made to prospective and current residents. 

My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick.  Here the "contract" trumped the statute. 

In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.

Continue reading