Elder Law Prof Blog

What is "Early Onset" Dementia?

Recently, San Diego residents learned the sad news that a much appreciated former coach of the Chargers football team, Marty Schottenheimer, age 73, has Alzheimer's Disease.  The article I read called it "early onset Alzheimer's."  Apparently the original diagnosis was made in 2011, when retired Coach Schottennheimer was approximately age 68.  Our wishes to "Coach Marty" and his family. 

It is, perhaps, also appropriate to point out that "early onset dementia" is different than than "early diagnosis of dementia." Medical experts typically refer to early onset dementia (sometimes EOAD for Alzheimer's type dementia) only for individuals age 65 or younger, often in a person's 50s, or even earlier.  

As an example from the sports world, legendary University of Tennessee women's basketball coach, Pat Summitt, publicly revealed her diagnosis of "dementia, Alzheimer's type," in 2011, at age 59.  She continued as the head coach for another academic year, before electing to retire (with, in her words, a "small r").  

In the last chapter of her third book, Sum It Up, Pat wrote movingly about her final year of coaching and the impact of her diagnosis, also admitting that she had probably been functioning "well" with Alzheimer's for about three years before she, with the help of her son, sought a diagnosis.  She explains how the fact of her diagnosis also led them to explore treatments and management techniques they might otherwise have ignored.  

As larger numbers of adults are living longer, I think we are hearing more frequently directly from persons in high positions about diagnoses of Alzheimer's or other neurocognitive impairments. This is important, because when healthy-living sports heroes are affected, we are more likely to pay attention and seek answers for everyone.  Whenever I see such news, even as I'm sad, I admire the courage of the speakers and am grateful for their candor. Seeing famous people continue to function, make realistic plans, and enjoy life is important for the "not-so-famous" too.  Their public candor highlights the critical need for discovery of preventions and cures for everyone.  

I suspect that when a member of the press -- or the nonmedical public -- refers to "early onset Alzheimer's," it is a reflection of hope, hope that any diagnosis at 70, 75, or even 80 must be unusual, rare, and therefore not a threat to "me" before some magically "older" age that is still far off, in the future.  

Related articles

Legendary NFL coach Marty Schottenheimer is reportedly dealing with early-onset Alzheimer's disease

2017 COLA & Inflation: Not Keeping Up

SSA announced recently that there would be a COLA for 2017, but it is a teensy COLA, actually, a .03% increase. Big gap between Social Security cost-of-living adjustment and retiree inflation offers a critical look at the 2017 COLA compared to inflation and how the government calculates the COLA using the consumer price index. An article in USA Today about the 2017 COLA noted that this COLA won't allow beneficiaries to get ahead, even slightly. Instead, they will likely lose ground, because of the Medicare Part B premium costs

The nation’s 65 million Social Security beneficiaries will receive a paltry 0.3% cost-of-living adjustment to their monthly checks in 2017, the government announced Tuesday. In dollars and cents, it means the average retired beneficiary’s check will rise about $5 to $1,360 per month in 2017.

The even more bitter pill: Many current Medicare beneficiaries won’t be able to spend any of that extra money. Instead, they’ll likely have to send their COLA straight back to Uncle Sam to cover higher Medicare Part B premiums.

Almost a third of Medicare's 56 million beneficiaries could see their premiums jump 22% next year, according to the Medicare Trustees Report, putting the cost at an estimated $149 per month. Those unlucky 30% of beneficiaries include people enrolling in Part B for the first time in 2017, people who are on Medicare but who aren't currently taking Social Security benefits and current enrollees who pay an income-related higher premium.

Self Awareness, Courage and Cognitive Impairment

The Washington Post recently had a good article titled Facing Financial Reality When Early Dementia is Diagnosed.  It begins with Chuck McClatchey's realization that something was wrong: 

He moved to Fort Worth at age 61 with his partner Bobbie Duncan, and they spent $25,000 in savings on a fixer-upper house. His plan was to work until he was 70. But then things got strange. “I was having trouble understanding new technologies and things that I should have known off the top of my head” and having trouble using Word and Excel and PowerPoint, “things I had known for years."

 

He left that job but had problems in another, simpler job at Lowe’s.

 

Then one day, amid growing confusion, came clarity.

 

“I brought home a little desk for me to put together,” he said. “I love to put things together, the more complicated the better.” It should have taken about half an hour. Instead, two hours later, “the pieces just weren’t going together like I thought they should.”

 

Duncan finally said what they both knew. He needed to see a doctor about what was going on in his brain. The diagnosis was Alzheimer’s. . . . 

McClatchey's early diagnosis allowed him to get help while he was still well able to participate in planning.  He applied for Social Security disability at age 61 and also became an "early stage advisor" for the the Alzheimer's Association.  

Reading this article reminded me of a good friend who also received a diagnosis of Alzheimer's at an early stage.  Betty has often inspired me by how she has approached this fact. She quietly told friends of her diagnosis, but she did not retreat from life. Betty stays engaged and has a full social life. She has made critical accommodations -- she keeps a daily journal to help with tasks and memory --  and her children have rallied to support and help her, while still giving her as much autonomy as possible. Indeed, her family was instrumental in these changes as they insisted on that first evaluation, rather than brushing away early warning signs as merely due to stress.  Thus, "self awareness" of both Betty and her family has been essential in creating a short and long range plan for the future.

The Post article also suggests that not every financial professional is skilled at recognizing how to help individuals with cognitive impairments, whether diagnosed or undiagnosed.  I think this is true for attorneys and other professionals as well. Good intentions alone are not enough.  From the article: 

Being good with money isn’t the only skill required to help dementia sufferers. Corey Purkat, an Oakdale, Minn., financial planner, found himself unable to help a couple in their 80s who hired him to help sort things out in the early stages of the wife’s dementia. She had been a financial professional whose memory issues rapidly worsened. As they did, “she got defensive that someone would have to help her with something she had done for a living.” That put more stress on her husband, who decided “he wasn’t up to making the hard decisions.”

 

“I did what I could, and I did the best I could,” he said of their amicable parting. But if a similar case comes up in the future, he said, “my goal is to refer them to someone with more experience” with dementia.

It takes courage to get a diagnosis when early, subtle warning signs appear.  It takes courage to help a family member get that diagnosis. Our thanks to George Washington Law Professor Naomi Cahn for sharing the link to this and other timely Washington Post articles. 

Geography and the Costs of Care At the End of Life

The New England Journal of Medicine published a study that shows by region where people spend more time at home at the end of life. Days Spent at Home — A Patient-Centered Goal and Outcome notes that

Being home at the end of one’s life will never be a universal goal, but our experience and academic research suggest that, all else being equal, patients would rather be at home than in health care facilities. When surveyed about their preferences for dealing with a terminal illness, most people (86%) indicated that they would prefer to be at home in their final days. In addition, they would not want to be on a ventilator in order to gain an extra week of life, and they are not opposed to drugs that could improve symptoms but potentially shorten life. These preferences are highly consistent across regions of the country and people’s socioeconomic status.1 Despite this consistency in end-of-life preferences, there is wide regional variation in the intensity of, expenditures on, and locations of care provided during the last 6 months of life.

(citations omitted)

The Wall Street Journal reported on the study. Where the Elderly Die Can Vary by Region, Study Shows explains that

How much time people spend in hospitals or nursing homes in the final months of life, instead of at home, varies widely depending on where they live, new research shows.

Across the Rockies and regions of the Gulf Coast, the dying spend more than two additional weeks hospitalized or in other facilities, on average, compared with those at the end of life in the Midwest and Montana, researchers reported Wednesday in the New England Journal of Medicine.

In other parts of the country, the picture is more mixed but still differs sharply from one community to another.

The study also looks at the differences in Medicare spending as a result of the regional variations. "Research suggests one reason for the geographical spending swings may be that doctors practice medicine differently in some areas of the country than others, with some doctors doing more despite little difference in results."  Even in some instances where the patient's care was supposed to be delivered at home, that didn't occur.  "The ... study also found that health-care and hospice services intended to keep people at home perhaps did not do so. Regions where use of home care and hospice were greater also had higher use of hospitals and nursing homes ...."

ACL Releases Independent Living Regs

The Administration for Community Living (ACL) released on October 26, 2016 the unpublished final regulation for independent living programs (the reg is officially published on October 27, 2016). The rule is effective November 25, 2016.

The discussion section explains the new rule

The federal Independent Living (IL) program seeks to empower and enable individuals with disabilities, particularly individuals with significant disabilities, to exercise full choice and control over their lives and to live independently in their communities. For over 40 years, these aims have been advanced through two federal programs: Independent Living Services (ILS) and Centers for Independent Living (referred to as CILs or Centers). The Workforce Innovation and Opportunity Act (WIOA) transferred these Independent Living programs to the Administration for Community Living (ACL) and created a new Independent Living Administration within the agency, adding section 701A of the Rehabilitation Act, 29 U.S.C. 796-1.

According to the ACL news release, the new regs:

• Clarifies requirements surrounding WIOA’s addition of new core services to:

  • Facilitate the transition of individuals with significant disabilities from nursing homes and other institutions to home and community-based settings
  •  Provide assistance to individuals with significant disabilities who self-identify as being at risk of entering institutions so that the individuals may remain in the community
  • Facilitate the transition of youth with significant disabilities who are no longer in school and no longer receiving services under section 614(d) of IDEA.

• Clarifies several key definitions. For example:

  • “Consumer control” adds specificity to definition in the context of individuals to mean that the person with a disability has control over his or her personal life choices, independent living plan and has the right to make informed choices about content, goals and implementation. Prior to the final rule, “consumer” was sometimes interpreted to include the parents or caregivers of the person with a disability
  • “Personal assistance services” is now defined to explicitly include assistance with activities outside of employment, such as social activities and parenting.

• Addresses the roles and responsibilities of the State Independent Living Council, as defined by WIOA. For example, the final rule:

  • Includes additional details of what must be a part of the SILC Resource Plan to carry out the functions of the SILC

  • Addresses the SILC’s authority to conduct resource development activities to support the provision of services by Centers for Independent Living

  • Clarifies the expanded role of the SILC in the development of the State Plan for Independent Living.

 

 

DOJ Settles False Claims Case vs. SNF

DOJ announced recently that it had settled a False Claims case against Life Care Centers of America Inc. (Life Care) and its owner, Forrest L. Preston. The defendants agreed to pay $145 million to settle a case where the Government claimed “that Life Care violated the False Claims Act by knowingly causing skilled nursing facilities (SNFs) to submit false claims to Medicare and TRICARE for rehabilitation therapy services that were not reasonable, necessary or skilled….” In addition, the defendant also signed a Corporate Integrity Agreement with the Office of Inspector General (HHS-OIG) for HHS. Under this 5 year agreement, “an independent review organization [will] … annually assess the medical necessity and appropriateness of therapy services billed to Medicare” by the defendant.  The suit was brought pursuant to the whistleblower provision of the False Claims Act.

According to the suit, the defendant put corporate-wide procedures and polices into place that caused a maximum number of “beneficiaries in the Ultra High reimbursement level irrespective of the clinical needs of the patients, resulting in the provision of unreasonable and unnecessary therapy to many beneficiaries.” Further the defendant tried to keep SNF residents longer than needed so the defendant could continue to bill for rehab, even though the therapists concluded therapy should be ended. The defendant kept careful track of the therapy minutes per patient and the patient’s therapy days so that the maximum number of patients were at that “highest level of reimbursement for the longest possible period.”

According to an email I received, the amount of the settlement was partially based on statistical sampling.

Thanks to Laurence Hooper for emailing me.

Refusing Foods & Fluids as a Right to Die?

The New York Times ran an article recently on individuals voluntarily refusing nutrition and hydration as a way to speed up the end of life. The VSED Exit: A Way to Speed Up Dying, Without Asking Permission focuses on individuals who voluntarily give up eating and drinking. We know that only a handful of states offer Physician-Aided Dying and even in states where that is legalized, not everyone fits within the parameters of the statute.  "In end-of-life circles, [the] option [voluntarily giving up food and fluids] is called VSED (usually pronounced VEEsed), for voluntarily stopping eating and drinking. It causes death by dehydration, usually within seven to 14 days. To people with serious illnesses who want to hasten their deaths, a small but determined group, VSED can sound like a reasonable exit strategy."

The article notes that for individuals who avail themselves of VSED, no law seems to be needed (although there is still some uncertainty on that point), no court intervention is required, but the individual needs a lot of fortitude, “'It’s for strong-willed, independent people with very supportive families,' said Dr. Timothy Quill, a veteran palliative care physician at the University of Rochester Medical Center." 

One unanswered question is whether VSED is "legal".

For a mentally competent patient, able to grasp and communicate decisions, probably so, said Thaddeus Pope, director of the Health Law Institute at Mitchell Hamline School of Law in St. Paul, Minn. His research has found no laws expressly prohibiting competent people from VSED, and the right to refuse medical and health care intervention is well established.

Still, he pointed out, “absence of prohibition is not the same as permission.” Health care professionals can be reluctant to become involved, because “they want a green light, and there isn’t one of those for VSED,” he added.

The question grows much murkier for patients with dementia or mental illness who have specified VSED under certain circumstances through advance directives. Several states, including Wisconsin and New York, forbid health care surrogates to stop food and fluids. (Oregon legislators, on the other hand, are considering drafting a bill to allow surrogates to withhold nutrition.)

The article reports on a recent conference and some of the issues discussed there.  The article also explains that with VSED, death doesn't come as quickly as with PAD, leading to issues for patients and caregivers. The article also notes there are (or likely could be) obstacles to using VSED, such as positions taken by long term care facilities or specific religions.

This topic would be great for a class discussion.

 

LGBTQI Elders & the Challenges of Staying Out?

Kaiser Health News ran a story, Staying Out Of The Closet In Old Age. The article explores the issues faced by elders who are out and become frail and need caregivers or supportive housing.  How significant are the issues faced by these elders? According to one expert quoted in the article, very.

“It is a very serious challenge for many LGBT older people,” said Michael Adams, chief executive officer of SAGE, or Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders. “[They] really fought to create a world where people could be out and proud. … Now our LGBT pioneers are sharing residences with those who harbor the most bias against them.”

Efforts are underway to move long term care providers to a point of understanding. Such efforts include

Nationwide, advocacy groups are pushing to improve conditions and expand options for gay and lesbian seniors. Facilities for LGBT seniors have opened in Chicago, Philadelphia, San Francisco and elsewhere.

SAGE staff are also training providers at nursing homes and elsewhere to provide a more supportive environment for elderly gays and lesbians. That may mean asking different questions at intake, such as whether they have a partner rather than if they are married (even though they can get married, not all older couples have).  Or it could be a matter of educating other residents and offering activities specific to the LGBT community like gay-friendly movies or lectures.

The article mentions a report this summer from Justice in Aging (formerly the National Senior Citizens Law Center), How Can Legal Services Better Meet the Needs of Low-Income LGBT Seniors? in which it was reported that 1/5  of those elder LGBTQI individuals in LTC facilities felt ok with being open about being an LGBTQI elder.

The article discusses the difficulty in finding housing and reports on some options that have developed, such as "the Los Angeles Gay & Lesbian Elder Housing organization opened Triangle Square Apartments in 2007. In the building, the first of its kind, residents can get health and social services through the Los Angeles LGBT Center. The wait for apartments with the biggest subsidies is about five years."

 

Abuse of Elder Mothers

The National APS Resource Center released a new research brief, Elder Abuse, Mother Abuse & Parenting in Later Life. The focus of the brief is older mothers with adult children who are described as difficult. "The sample is low income and minority older women 62 years and older. All of the women had allowed their adult children to move back into the family home when the adult children had [become] unable to support themselves due to mental health issues, break up of a romantic relationships or unemployment." The brief explains the stress these mothers undergo and the reasoning for why the mothers allowed their children to move back in with them and why they don't make the children move out once problems occur.  Consider this from the brief,

A surprising finding is that none of the women ever used the word “abuse,” including those who had contacted law enforcement and/or had obtained an order of protection. Instead, they presented themselves as mothers who made the decision to protect their adult children over their own personal comfort or safety.

As far as policy implications, "[a] surprising finding is that none of the women ever used the word “abuse,” including those who had contacted law enforcement and/or had obtained an order of protection. Instead, they presented themselves as mothers who made the decision to protect their adult children over their own personal comfort or safety. "  The brief suggests that APS workers and elder mothers develop a "safety plan" for addressing both the mother and child's needs.

As

 

LeadingAge's Annual Meeting Begins October 30 in Indianapolis

LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October.  This year's theme is "Be the Difference," a call for changing the conversation about aging.  I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns.  For example, this year's line up of workshops and topics includes:

• General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media." 
• Hundreds of sessions, organized by "interest groups":

  Board of Directors/Trustees

  Facilities Management 

  Home and Community Based Services

  Affordable Housing

  Workforce Issues

  Philanthropy

Geripal Podcast-Bed Alarms

Geripal-a geriatrics/palliative care blog-has started a podcast series. The first one is on bed alarms. The podcasts include links to articles referenced in the podcasts. For the one on bed alarms, the following were discussed:

Barker Anna L, Morello Renata T, Wolfe Rory, Brand Caroline A, Haines Terry P, Hill Keith D et al. 6-PACK programme to decrease fall injuries in acute hospitals: cluster randomised controlled trial BMJ 2016; 352 :h6781

Shorr RI, Chandler AM, Mion LC, Waters TM, Liu M, Daniels MJ, et al. Effects of an Intervention to Increase Bed Alarm Use to Prevent Falls in Hospitalized Patients: A Cluster Randomized Trial. Ann Intern Med. 2012;157:692-699.

Covinsky KE, Pierluissi E, Johnston CB. Hospitalization-Associated Disability“She Was Probably Able to Ambulate, but I’m Not Sure”. JAMA. 2011;306(16):1782-1793

Zisberg, A., Shadmi, E., Sinoff, G., Gur-Yaish, N., Srulovici, E. and Admi, H. (2011), Low Mobility During Hospitalization and Functional Decline in Older Adults. Journal of the American Geriatrics Society, 59: 266–273

Click here to access the podcast.

Should Judges Have Mandatory Retirement Ages? What's the "Right" Number?

Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions.  In a perfect world, merit-based criteria should be the issue, not age.  At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire.  The whole family was involved, but it needed to happen.

During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges.  The spring initiative read:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary.  I voted yes, knowing that many of the most capable judges were still in their prime at 70+  

However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative.  Instead, in  the upcoming general election the following initiative will appear:

Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?  

Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like  the hide-the-ball tactics.  He joined others and challenged the language.   His word for the tactic?  "Deceitful."

Who had the final say on which language would be used?  Ironically, the Pennsylvania Supreme Court.  In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.  

Related articles

Supreme Court deadlock ends challenge to referendum on Pa. judge retirement age

Drafting Issue: How Much Information Should a Ballot Proposition Include?

Will Colorado Be the Next State to Approve Aid-In-Dying?

The most recent issue of Governing magazine contains an article on the upcoming vote in Colorado on aid-in-dying. Colorado Could Strengthen Aid-in-Dying Movement explains "[t]he movement has been slow to gain momentum -- Oregon was the first state to legalize aid in dying in 1994. But Colorado could reignite the cause in November. Voters there will be weighing Proposition 106, a ballot measure modeled after Oregon's. It would give mentally competent adults with a medical prognosis of six months to live the right to request a prescription to end their lives. Two doctors must agree."

The article notes that looking at past state referendums, one would think the odds are long for Colorado approving the measure. But "Colorado ... may beat the odds. According to a September poll, 70 percent of Colorado voters support the measure, 22 percent oppose it and 8 percent are undecided."

As to be expected with this type of legislation, there are supporters and opponents. Two of the state's newspapers urged voters to not support the bill.  The governor of Colorado supports the bill, saying: '"It’s not about suicide.... These people are going to die anyway. They’re terminally ill… I think they should have that right to have medical advice, medical supervision, be able to make sure they have the final say themselves."'

Stay tuned...

Professor Kaplan on Religion and Advance Medical Directives

University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.

From the abstract: 

This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.

This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics.  Thank you, Dick.

Aging in Community

We've blogged on several occasions about aging in place. So a recent article in the New York Times caught my eye.  The Future of Retirement Communities: Walkable and Urban starts out noting our dependence on cars to get where we want to go, but perhaps that is about to change. "Few people in America walk to work. Most of us drive to the supermarket. But more older people these days are looking for a community where they can enjoy a full life without a car." Focusing on one couple's search for the perfect community,  the couple explained, "'[w]e realized ‘aging in place’ means a lot more than just a comfortable house ... [s]o we began thinking more about ‘aging in community.’ That means an urban neighborhood where you can walk or take transit to just about everything you need.'”

This concept, walkable living, isn't a new one, but is one that has somewhat fallen to the wayside with our dependence on cars and cities designed for vehicles rather than people.  "Developments for independent retirees typically come in two flavors: isolated, gated subdivisions or large homes on golf courses, often in the same bland package of multiple cul-de-sacs. Both require driving everywhere, which is a problem for those who either don’t want to drive or can’t."

With new urbanism, an emphasis on walkable communities is gaining traction. Of course, walkability leads to more activity, which we know has benefits to those walking.   There are challenges to building  communities for aging.  The article mentions the hurdles. "Age-friendly communities within cities may require extensive infrastructure improvements, including wider sidewalks, bike lanes, more public transportation options and longer pedestrian signal walk times. Local officials may not want to rezone or invest in the improvements or even permit them."  Then factor in costs, because some currently walkable cities are also costly for residents.  There are tradeoffs, however, so don't rule those out.

Have you students read this article, and have them judge your community for "aging in community."

Suit Filed Challenging CMS Rule vs. Pre-Dispute Arbitration

We knew it was coming. The American Healthcare Association has filed suit in the federal district court in the Northern District in Mississippi, challenging the CMS rule that prohibits pre-dispute arbitration in nursing home admission contracts, American Health Care Association Files Court Challenge to Arbitration Rule: CMS Exceeds Statutory Authority by Banning Pre-Dispute Arbitration Agreements in Updated Requirements of Participation

The press release explains

The American Health Care Association (AHCA) today filed a lawsuit against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.against the Department of Health and Human Services challenging the legality of a provision of a recently released regulation. The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.

The suit "request[s] the courts [act] to stop the enforcement of the arbitration portion of the rule after its effective date of November 28, 2016." The complaint is available here.

Gauging Aging

I was reading recently the following report, Gauging Aging: Mapping the Gaps between Expert and Public Understandings of Aging in America  from the Frameworks Institute.  The report comes from a collaboration of aging organizations, with the purpose "to develop a new, evidence-based narrative around the process of aging in our country, and the roles and contributions of older Americans. This first phase of the project identifies the patterns of thinking that Americans use to reason about issues related to aging, and compares those patterns with the knowledge of experts in the aging field." Why is this report different from others? 

The research presented here is distinct from most public opinion research that documents what people say by conducting polls or focus groups. In this report, we take the analysis a level deeper to document the assumptions and thought processes that inform what people say and structure their judgments and opinions. This cultural-cognitive approach is powerful because identifying ways of thinking is key to developing more effective and strategic communication. By understanding the various ways that people are (and are not) able to think and reason about an issue, communicators can craft messages that avoid unproductive understandings, activate productive ones, and elevate new ways of thinking that are better aligned with policy goals. In short, an understanding of how people think is a powerful tool in identifying the specific perceptual challenges that require reframing.

The executive summary covers the experts' views on aging (what is it, what is older, policy needs).  The executive summary offers these  characteristics of older adults: "Experts explain that, as a group, older adults vary greatly with respect to health, financial situation and functional status. Adults over the age of 60 are living and staying productive longer, and represent the fastest-growing segment of our population. This unprecedented trend represents a long-term shift in the age structure of our society. Older adults have an enormous economic and social impact on American society — an impact that is often not well accounted for in our discourse, media and public policy."

The public view of aging section is particularly interesting as is the section on gaps in understanding.  The report is written in a way that makes it a useful tool for classroom discussion. A pdf is available here. Check it out!

Will Increases to Minimum Wage Impact Seniors?

Arizona has two interesting initiatives on the 2016 ballot for the November 8th election.  One is Proposition 205, which would legalize recreational marijuana if passed; the other is Proposition 206 which would increase the state's minimum wage from $8.05 per hour to $10 per hour in 2017 (and incrementally thereafter to $12 by 2020), plus require employers to provide paid sick leave (40 hours annually for large employers and 24 hours annually for small employers). Guess which Prop is getting the lion's share of attention on media airwaves? Nonetheless, both measures are high profile and certainly the wage initiative should be carefully considered.  

Mark Young, who is president of the Arizona In-Home Care Association, and operates a home care company in Arizona, offers an interesting perspective on the potential impact of higher minimum wages in a column published recently on the Opinion page for the Prescott Daily Courier. He opens: 

While much of the attention to Proposition 206 has been directed toward restaurant and other service workers, there is a larger and more vulnerable population that will be significantly impacted by raising the minimum wage in Arizona: Seniors and those who care for them.

 

As the president of the Arizona In-Home Care Association, I represent an industry that has been hit hard in recent years by the Affordable Care Act and other federal legislation and unfunded mandates. Proposition 206 goes a step beyond in terms of its direct impact to our elderly and disabled population. What many fail to see is that raising the minimum wage by 50 percent will also cause an increase in the cost of needed in-home care for seniors, disabled adults and even children.

He cites Seattle's increase of minimum wage to $15/hour as evidence of an corresponding increase for the average cost of in-home care to nearly $35 per hour, making such services "out of reach for many seniors."  He continues: 

Even more concerning is the potential unintended consequences of Prop 206: The emergence of an underground market which would place liability and risk on our most vulnerable community members. This could result in increased financial, physical, or even mental abuse by predators targeting seniors and disabled adults and children – a segment of our society already at risk.

 

As our senior population grows the demand for skilled caregivers has been increasing dramatically. If the cost to employ skilled caregivers goes up while the pool of available workers shrinks, many in-home care agencies will be forced to meet demand by hiring workers who are less expensive but also less experienced which could negatively impact overall quality of care.

The affordability argument for home care I understand, but I'm pretty darn skeptical of an argument that keeping the official minimum wage under $10 per hour protects against predatory behavior by home care workers. Nonetheless, it will be interesting to see how Arizonans vote on these two propositions, especially given the state's often libertarian take on conservative politics. At least one poll shows Arizonans favor the incremental increases under Prop 206 to $12 per hour.

The Gray Gender Gap

The New York Times ran an article on October 7, 2016 exploring the "gray gender gap." The Gray Gender Gap: Older Women Are Likelier to Go It Alone is based on a recent report Older Americans 2016: Key Indicators of Well-Being (available here as a pdf). The author focuses on marital status, and notes by age, men are more likely than women to be married. "About three-quarters of men ages 65 to 74 are married, compared with 58 percent of women in that age group. More surprisingly, the proportion of men who are married at 75 to 84 doesn’t decline; among women, it drops to 42 percent...Even among men over 85, nearly 60 percent are married. By that point, only 17 percent of women are."  The article looks at the reasons for this disparity and discusses the economic impact of "going it alone."  According to a study referenced in the article, "[a]bout 8 percent of married older adults are poor or “near poor.” Among unmarried men, the percentage rises to about 20 percent. For unmarried women, it’s 27 percent."  Economics are not the only benefit that may come from marriage. There may be health benefits, too.  The article notes as well that there are caregiving facing those who are going it alone.   Some people actually flourish being alone, but it is interesting to think about this gray gender gap!

Consumer Financial Protection Bureau Structure Unconsitutional

On October 11, 2016, the U.S. Court of Appeals for the D.C. Circuit ruled in PPH Corp. v. Consumer Financial Protection Bureau. Although initially conceived as a "multi-member independent agency" in its final form approved by Congress, the CFPB is "an independent agency headed not by a multi-member commission but rather by a single Director. Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check –than any single commissioner or board member in any other independent agency in the U.S. Government. Indeed, as we will explain, the Director enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President."  The opinion notes the great power held by the director and describes it as "massive in scope, concentrated in a single person, and unaccountable to the President [and thus] triggers the important constitutional question at issue in this case." Examining historical precedent and discussing the lack of checks on the director's power under the current structure which (the court described as a "threat to individual liberty posed by a single-Director independent agency"), the court held "that the CFPB is unconstitutionally structured."

The court looks next at the appropriate remedy, with the Plaintiff arguing the agency should be shuttered. Instead, the court severed the offending language in the statute, to provide "the President ... the power to remove the Director at will, and to supervise and direct the Director."  The court goes on at length (and acknowledges this) to explain its ruling, and to also address the Plaintiff's challenge to the fine imposed against it by the CFPB. 

The CFPB therefore will continue to operate and to perform its many duties, but will do so as an executive agency akin to other executive agencies headed by a single person, such as the Department of Justice and the Department of the Treasury. Those executive agencies have traditionally been headed by a single person precisely because the agency head operates within the Executive Branch chain of command under the supervision and direction of the President. The President is a check on and accountable for the actions of those executive agencies, and the President now will be a check on and accountable for the actions of the CFPB as well.

The opinion is available here.