Elder Law Prof Blog

Social Security Fast Facts

The Pew Research Center on August 18, 2015 released the FactTank  5 facts about Social Security (the FactTank is "[r]eal-time analysis and news about data from Pew Research writers and social scientists."). So what are those 5 facts? Here you go!

1. Social Security touches more people than just about any other federal program.

2. Social Security is, and always has been, an inter-generational transfer of wealth.

3. Right now, Social Security has plenty of assets.

4. But since 2010, Social Security’s cash expenses have exceeded its cash receipts. 

5. Social Security’s combined reserves likely will be fully depleted by 2034....

Oliver Sacks on "The Joy of Old Age..."

Oliver Sacks, neurologist and author (and much more more), often wrote about issues relevant to aging, including his own.  Sadly he won't be able to continue to share his insights, as he passed away on August 30, at "just" 82 years.  The New York Times reported the news here.  But I think that perhaps the most important words come from Dr. Sacks himself, including those from a recent essay, "The Joy of Old Age (No Kidding)." Here are some words to live by:

At nearly 80, with a scattering of medical and surgical problems, none disabling, I feel glad to be alive — “I’m glad I’m not dead!” sometimes bursts out of me when the weather is perfect. (This is in contrast to a story I heard from a friend who, walking with Samuel Beckett in Paris on a perfect spring morning, said to him, “Doesn’t a day like this make you glad to be alive?” to which Beckett answered, “I wouldn’t go as far as that.”) I am grateful that I have experienced many things — some wonderful, some horrible — and that I have been able to write a dozen books, to receive innumerable letters from friends, colleagues and readers, and to enjoy what Nathaniel Hawthorne called “an intercourse with the world.”

 

I am sorry I have wasted (and still waste) so much time; I am sorry to be as agonizingly shy at 80 as I was at 20; I am sorry that I speak no languages but my mother tongue and that I have not traveled or experienced other cultures as widely as I should have done.

 

I feel I should be trying to complete my life, whatever “completing a life” means. Some of my patients in their 90s or 100s say nunc dimittis — “I have had a full life, and now I am ready to go.” For some of them, this means going to heaven — it is always heaven rather than hell, though Samuel Johnson and James Boswell both quaked at the thought of going to hell and got furious with David Hume, who entertained no such beliefs. I have no belief in (or desire for) any post-mortem existence, other than in the memories of friends and the hope that some of my books may still “speak” to people after my death....

 

At 80, one can take a long view and have a vivid, lived sense of history not possible at an earlier age. I can imagine, feel in my bones, what a century is like, which I could not do when I was 40 or 60. I do not think of old age as an ever grimmer time that one must somehow endure and make the best of, but as a time of leisure and freedom, freed from the factitious urgencies of earlier days, free to explore whatever I wish, and to bind the thoughts and feelings of a lifetime together.

Nunc demittis servum tuum,  with our deep thanks and lasting memories.

Medicaid Eligibility: Ohio Supreme Court Addresses Effect of Post-Admission, Pre-Eligibility Transfer of Home

One year and six days after hearing oral argument in Estate of Atkinson v. Ohio Department of Job & Family Services, a divided Ohio Supreme Court ruled in favor of the State in a Medicaid eligibility case involving transfer of the community home.  The majority, in a 4-3 vote, ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set." However, the court also remanded the case to the lower court for recalculation of the penalty period under narrow, specific provisions of state and federal law.

Attorneys representing families in "Medicaid planning" scenarios will be disappointed in the ruling, because it rejected "exempt asset" and "timing" arguments that would have permitted some greater sheltering of assets after the ill spouse's admission to the nursing home. 

At the same time, the complex reasoning and specific facts (involving transfer of the family home out of the married couple's "revocable trust" to the community spouse), will likely create additional business for elder law specialists, especially as the majority distinguished the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."   

The dissent was strongly worded:

It is clear that the law treats the marital home very carefully to prevent spousal impoverishment at the end of life. And that is the public policy we should be embracing. Based on the plain language of the federal statutes and the Ohio Administrative Code, as well as the holding of the United States Court of Appeals for the Sixth Circuit in Hughes v. McCarthy, 734 F.3d 473, I would hold that the transfer of the home between spouses prior to Medicaid eligibility being established is not an improper transfer and is not subject to the CSRA cap.

To view the oral argument of the case before the Ohio Supreme Court, see here. 

Who "Owns" Funds in Joint Accounts -- and Why Might It Matter for Medicaid Purposes?

Sometimes "small" cases reveal larger problems. A recent appellate case in Pennsylvania is a reminder of how practical solutions, such as establishing a joint bank account to facilitate management of money or to permit sharing of resources during early stages of elder care, may have unforeseen legal implications later. In Toney v. Dept. of Human Services, decided August 25, 2015, the Commonwealth Court of Pennsylvania ruled that "half" of funds held in a joint savings account under the names of the father and his son, were available resources for the 93-year-old father.  Thus the father, who moved into a nursing home in May 2014, was not immediately eligible for Medicaid funding. 

The son argued, however, that most of the money in the account was the son's money, proceeds of the sale of his own home when he moved out of state almost ten years earlier:

"The son alleged that his father used the bulk of that money to maintain himself, with the understanding that any money remaining from that CD after his father's death would revert to him. The ALJ, however, rejected the son's testimony as self-serving and not credible...."

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Webinar-Dementia-Friendly Communities

I had  blogged previously about the White House Conference on Aging (WHCOA) and the topic of dementia-friendly cities.  The Administrative for Community Living (ACL) is offering a webinar on September 1 at 4 p.m. edt on Dementia-Friendly Communities.  The announcement describes the webinar:

Join the National Alzheimer’s and Dementia Resource Center for a webinar on creating communities that are safe and respectful, provide support, and work toward quality of life for people living with dementia and their families.

Webinar participants will learn about key concepts related to Dementia Friendly Communities and hear from community leaders putting  these concepts into action.

The registration page is no longer taking registrations but hopefully there will be an archive of the webinar for those of us unable to attend. The National Alzheimer's and Dementia Resource Center was formerly known as the Alzheimer's Disease Supportive Services Program.

Webinar on Effective Guardianship Practice

Dr. Brenda Ukert of the National Center for State Courts will be speaking on September 2, 2015 at a webinar on How to Protect our Nation's Most Vulnerable Adults through Effective Guardianship Practices. The one hour webinar starts at 1 PM edt.  The registration page describes the webinar:

Adult guardianship cases are some of the most complex cases handled in civil and probate courts.  While each state differs in qualifications, processes, and monitoring requirements, there are standards that can guide your court in developing robust practices that enhance both court efficiencies and oversight.  This webinar, based on NACM’s Adult Guardianship Guide, provides action steps courts can take to improve guardianship practices.  Concrete examples of innovative approaches and collaborative efforts will be highlighted.  Consideration will be given to the level of resources available to the court.

To register for the webinar, click here. The guide referenced in the webinar description is available here.

Justice in Aging: Analyzing Training of Workers Who Assist People with Dementia

Justice in Aging offers  a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.

The papers include:  

• Paper 1: Issue Overview
• Paper 2: A Review of Dementia Training Standards across Health Care Settings
• Paper 3: A Review of Dementia Training Standards across Professional Licensure
• Paper 4: Dementia Training Standards for First Responders, Protective Services,  and Ombuds
• Paper 5: Promising Practices-Washington State-A Trailblazer in Dementia Training

To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home.  Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards.  The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel. 

If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.    

 

LegalZoom Touts "Legal Advice"

Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents.  LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies. 

Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning.  Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice."  Here's a link to one recent example.   

The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following: 

"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com." 

Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state.  The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  LegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers. 

"Sixty-five is the New Sixty-four!"

Recently I was listening to satellite radio while on the road, and caught a Fresh Air interview with Robert Price, celebrated author of hardscrabble crime fiction, including Clockers (2008)and his most recent novel The Whites (2015).  Is it my imagination, or are "older adults" appearing more and more often in mainstream fiction and movies?  Apparently a central character in The Whites is just such an "senior."  In Price's interview, I was struck by the humor of his observations about how growing older himself has influenced his writing, but also about much his grandparents' lives affected his fiction.  And I couldn't help but laugh when he observed that no one likes the "math" as you get older, although he is now the first to admit that "65 is the new 64."  Here's a link to the 44 minute podcast with Terry Gross. 

Medicare Learning Network Call on Dementia Care

The Centers for Medicare & Medicaid Services (CMS) provides the Medicare Learning Network (MLN). MLN provides, among other things, articles, trainings, and national provider calls. The next national provider call is scheduled for September 3, 2015 at 1:30 p.m. edt on the National Partnership to Improve Dementia Care and QAPI. Here is the description of this call

During this MLN Connects® National Provider Call, two nursing homes share how they successfully implemented person-centered care approaches and overcame the barriers of cost and staff. Additionally, CMS subject matter experts update you on the progress of the National Partnership and Quality Assurance and Performance Improvement (QAPI). A question and answer session follows the presentations.

The National Partnership to Improve Dementia Care in Nursing Homes and QAPI are partnering on MLN Connects Calls to broaden discussions related to quality of life, quality of care, and safety issues. The National Partnership was developed to improve dementia care in nursing homes through the use of individualized, comprehensive care approaches to reduce the use of unnecessary antipsychotic medications. QAPI standards expand the level and scope of quality activities to ensure that facilities continuously identify and correct quality deficiencies and sustain performance improvement.

Should you register for this program?  The intended audience is "[c]onsumer and advocacy groups, nursing home providers, surveyor community, prescribers, professional associations, and other interested stakeholders." So, if you fall into one of those groups, the answer is yes, you should register. Registration information is available here.

More information about the National Partnership to Improve Dementia Care in Nursing Homes is available here.

Subtle Messages in Webinar on "Managing" the Aging Academic Workforce?

An interesting approach to the topic of aging faculties in higher education recently came across my virtual desk in the form of an advertisement for an upcoming webinar (with an interesting price tag to match).  The title of the program is "Managing and Supporting an Aging Workforce," offered by Academic Impressions (a company I'm not familiar with) on November 15, 2015 from 1 to 2:30 p.m. EST. 

The brochure advises "Given the nature of this topic, this online training is appropriate for human resources professionals, department chairs, deans, and senior administrators who deal with faculty and personnel issues."

Here's the description, which strikes me as charting a careful approach to helping (encouraging?) older faculty members make the decision to retire, without running afoul of age discrimination laws.

Experienced academic and administrative employees are the pillars for many institutions in higher education. However, with many faculty and staff members working well into their 60’s and 70’s, administrators face the challenge of supporting an aging workforce while having the appropriate policies and procedures in place.

Learn how to better balance the interests of your employees with the needs of your institution. This webcast will cover:

• Laws governing discrimination and how to remain in compliance

• Appropriate steps for dealing with diminishing capabilities

• Performance reviews, policies, and procedures

20 Common Nursing Home Problems & How to Resolve Them

Justice In Aging has released an updated version of their guide, 20 Common Nursing Home Problems
and How to Resolve Them. Originally published in 2005, the guide has been updated and released in July, 2015. The guide is free and downloadable after registering your name, email address and indicating whether you are a professional or family member of a resident.  The guide is authored by Eric Carlson, a well-know leader in the field on representing residents of nursing homes. Eric is also the author of Long Term Care Advocacy, published by LexisNexis.

Must Courts Honor Alleged Incapacitated Person's Nominee for Guardian?

In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians.  The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator. 

On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians.  In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference. 

Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian.  While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice.  Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .

Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian. 

Call in Program Today with Ken Dychtwald

Today Ken Dychtwald (AgeWave) will appear on  NPR/KQED’s Forum with Michael Krasny. The call-in program is set from 10-11 pdt. According to the email announcement I received from AgeWave, the program host and Mr. Dychtwald "will be candidly discussing Ken’s thoughts and personal feelings about what it means to be an aging expert who just turned 65.  For the first time, Ken will publicly reflect on how he is both distressed and motivated by his own aging process and how his books, such as Age Wave, may or may not jibe with what he is now experiencing personally." Listen to the interview here: http://www.kqed.org/radio/listen/. 

Can't make the live program? This is the link to where the interview will be archived:
http://www.kqed.org/radio/programs/audio-archives.jsp

New Blog from National Center on Elder Abuse

The National Center on Elder Abuse (NCEA) announced their new blog supported by the USC Davis School of Gerontology Center for Digital Aging. The announcement of the NCEA blog provides the following information:

The National Center on Elder Abuse is proud to be producing a new series of blogs featuring expert opinions and diverse views in the field. 

Each month, the blogs will focus on topics brought to us by the Elder Justice Roadmap.  Themes will concentrate on practice improvement, education, policy and research.

The blogs will also address trending topics based on technical assistance inquiries and social media conversations. 

News and resources surrounding our monthly themes will be disseminated on our Facebook and Twitter pages.

In addition, join us the third Thursday of every month for our Twitter chat series featuring national experts! 

The blog is available here.

Reading the "Alphabet Soup of Medicare & Medicaid Contractors"

Attorneys Don Romano and Jennifer Colagiovanni have a useful article in the August issue of The Health Lawyer, published by the ABA.  In The Alphabet Soup of Medicare and Medicaid Contractors, the authors spell out the many players involved in claims processing, payment and oversight for federal/state health care payments:

Healthcare providers, suppliers, and their staff, as well as attorneys representing healthcare entities are faced regularly with a barrage of private contractors tasked with a variety of responsibilities for administering the Medicare program, including claims processing, reimbursement, enrollment and auditing activities.  Given the number of different contractors (and different acronyms, for that matter), it can be difficult to identify the role of the particular contractor one is dealing with, the focus of goal of the program the contractor is involved in , and the responsibilities it is tasked with managing, as well as the statutory and regulatory scope of its authority.  This article seeks to identify the various Medicare and Medicaid contractors and outline their authority, focus and responsibilities.

If you ever had any question about why Medicare and Medicaid are expensive programs, this article suggests that payment for services is not the "only" significant cost factor. 

Dementia At An Earlier Age?

The Washington Post ran an article about a recent study that people are now developing dementia at a younger age than in decades past. People are developing dementia earlier and dying of it more, a study shows discusses a study that was published in Surgical Neurology International. The Post story notes that the study was reported in the London Times in the story, Dementia Victims Are Getting Younger.  The Post article notes that "[s]cientists quoted in the study said a combination of environmental factors such as pollution from aircraft and cars as well as widespread use of pesticides could be the culprit, the newspaper reported." The leader of the study was quoted:

The rate of increase in such a short time suggested a silent or even a hidden epidemic, in which environmental factors must play a major part, not just aging...[and] no single factor was to blame, but instead [the study leader] blamed the interaction between different chemicals and varying types of pollution.

Other experts disagree with the finding, according to the Post article, referencing the Times article.  One expert noted that" death rates for cancer and heart disease could account for the spike in deaths from neurological disease since people 'had to die of something.'" Another expert was quoted that "[w]e can’t conclude that modern life is causing these conditions at a younger age....We know that Alzheimer’s and other dementias can have a complex interplay of risk factors.”

The study, Neurological deaths of American adults (55–74) and the over 75's by sex compared with 20 Western countries 1989–2010: Cause for concern is available here.

Telephone Therapy Shows Promise

Kaiser Health News (KHN) ran a story Telephone Therapy Helps Older People In Underserved Rural Areas, Study Finds, that reports that "[t]herapy provided over the phone lowered symptoms of anxiety and depression among older adults in rural areas with a lack of mental health services.... The option is important, one expert said, because seniors often have increased need for treatment as they cope with the effects of disease and the emotional tolls of aging and loss." 

The folks in the study suffered from generalized anxiety disorder. Fifty percent of the participants "received cognitive behavioral therapy, which focused on the recognition of anxiety symptoms, relaxation techniques, problem solving and other coping techniques." The remaining fifty percent received "less intensive phone therapy in which mental health professionals provided support for participants to discuss their feelings but offered no suggestions for coping."  The results show that both groups benefited from the therapy but those in the first group did better.

There are roadblocks to using phone therapy, according to the article.  "Medicare only pays for telehealth services done in rural areas with provider shortages; patients cannot do a phone call in their home, but must drive to a physician’s office or hospital to connect with the mental health professional at another site" according to a Professor quoted in the article. As well, some states require those who are providing "medical care must be licensed in the state where the patient resides."

The study, Telephone-Delivered Cognitive Behavioral Therapy and Telephone-Delivered Nondirective Supportive Therapy for Rural Older Adults With Generalized Anxiety Disorder was published in JAMA Psychiatry and is available here.

Federal Court Applies "Doctrine of Reasonable Expectations" to Long-Term Care Insurance Policy

An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy.   The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California.   UPDATE: link to Order dated August 14, 2015. 

In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years.  Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE).  With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy.  The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.  

Insurers understandably prefer not to pay claims if they can avoid doing so.  In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit." 

On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.

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A New Senior Migration?

Money magazine ran an article recently about a new pattern in elder migration post-retirement. Seniors Are Seeking Out States Where Marijuana is Legal explains that "there is anecdotal evidence that people with health conditions which medical marijuana could help treat, are relocating to states with legalized marijuana,” quoting a UCLA professor of public policy. Using data from a moving company,

The Mountain West – including Colorado, which legalized medical marijuana in 2000, and recreational use in 2012 – boasted the highest percentage of people moving there to retire .... One-third of movers to the region said they were going there specifically to retire.

The article notes that marijuana is good for what typically ails elders, such as "[c]hronic pain, inflammation, insomnia, loss of appetite: All of those things are widespread among seniors" according to the deputy director of the National Cannabis Industry Association. The sales data show that a large portion of purchases is made by elder customers.

Thanks to my colleague and friend, Professor Mark Bauer, for telling me about this story.