Elder Law Prof Blog

Tips to Living Longer From Those Who Are

So if someone who has lived a long time offers you tips to living longer, would you follow those tips?  There have been a number of interviews with centenarians asking them to what they attribute their long lives.  I suspect if you research it, you will find different explanations from them, such as those in a Forbes article. (just Google, for example, "why centenarians live so long").

A recent story from Dr. John Day covers his visit to the "Longevity Village" in China where 1 of every 100 residents (out of a total of 550) is a centenarian.  In this article, Tips for a Long, Healthy Life From ‘Longevity Village’, the centenarians offer several tips for living longer: smile more, rethink what is stressful, and enjoy your accomplishments at the end of the day. Oh and don't be afraid of aging.

Medicaid Per Capita Caps Explained

The National Council on Aging (NCOA) posted a story on its blog explaining per capita caps and the impact on elders. Straight Talk for Seniors®: How Medicaid Caps Would Impact Seniors explains how Medicaid per capita caps would work.

Medicaid is funded jointly by the federal government and the states. Today, the federal government gives states matching funds to cover a percentage of their actual Medicaid costs. This keeps Medicaid affordable for states.

Under per capita caps, the federal government would limit, or cap, its contribution to the states based on a preset formula. This means states would be left paying the true cost of care for people in need. Many predict that states would face severe funding gaps and have to cut back on services to make up the difference.

If this is implemented, 5 states in particular would be hit hard as far as home and community based services funding, including my state of Florida. Those 5 states, besides Florida, are Alaska, Arizona, Georgia, and Nevada.  The impact can be severe, as the article notes:

Medicaid per capita caps would hurt seniors in all states, but some states would fare worse than others. Here’s why.

First, the caps would be set based on each state’s 2016 Medicaid costs. This means states that were efficient and kept their costs low that year will be locked into a lower federal contribution. North Carolina, California, Nevada, Georgia, and Florida are examples of states that fall into this category.

Second, the caps would not adjust for an aging population. This means states whose 65+ population is growing faster than the national average will be locked into a smaller federal contribution that will not keep pace with growing costs. In fact, the caps would begin when baby boomers start turning 80. People aged 85+ are more likely to need long-term services and supports, and the cost of their care is 2.5 times more than people aged 65-74.

Canada: Medical Aid-in-Dying

A recent story in the Toronto Star covers a ruling from a trial court judge about Canada's Medical Aid-in-Dying law. Advocates hail judge’s decision in woman’s assisted death appeal  explains the judge's decision: "[a] 77-year-old woman seeking medical assistance in dying has a “reasonably foreseeable” natural death, a judge declared Monday in an attempt to clear up uncertainty that left her doctor unwilling to perform the end-of-life procedure for fear of a murder charge."  The concern in the case was the meaning of "reasonably foreseeable" and the judge held "[t]o be reasonably foreseeable, the person’s natural death doesn’t have be imminent or within a specific time frame or be the result of a terminal condition...."

The judge went on to explain

“The legislation is intended to apply to a person who is “on a trajectory toward death because he or she a) has a serious and incurable illness, disease or disability; b) is in an advanced state of irreversible decline in capability; and c) is enduring physical or psychological suffering that is intolerable and that cannot be relieved under conditions that they consider acceptable,” ....

If Medicaid is Cut, is the Result a Crisis for Some SNF Residents?

This week is a big one for the Senate as they consider the Republican version of a health care bill to "repeal" the Affordable Care Act.  Now I confess that I've only skimmed portions of it, and I suspect that there will be some "deal making" going on to amend the proposal in an attempt to gather the necessary votes for it to pass.  I don't intend this to be a political post, although the title probably makes you think I do.  But depending on what happens, couldn't a crisis be looming as a result, at least for those individuals in nursing facilities whose stays are covered by Medicaid?  Whether per capita caps or block grants, the potential remains that there may be less money to cover long term stays in nursing homes, right?

What got me thinking about this post was an article in the New York Times on June 24, 2017. Medicaid Cuts May Force Retirees Out of Nursing Homes asks the question, what happens if Medicaid cuts are enough to affect coverage for long term nursing home care? "Under federal law, state Medicaid programs are required to cover nursing home care. But state officials decide how much to pay facilities, and states under budgetary pressure could decrease the amount they are willing to pay or restrict eligibility for coverage."  One expert interviewed for the story suggested that even if the ACA isn't repealed, Medicaid is still an attractive target for cuts and don't forget that long term nursing home care makes up a significant amount of Medicaid spending, "long-term services such as nursing homes account for 42 percent of all Medicaid spending — even though only 6 percent of Medicaid enrollees use them." The article considers the possibilities of cuts and the impact both on the facilities and the residents.

Justice in Aging released a blog post, issue brief and fact sheet focusing on the impact the Senate version of the bill will have on elders. The Fact Sheet, discussing Caps lists 5 downsides to the states and 3 ways elders will be harmed.  Since the Times article was focused on nursing facility coverage, here's what the Justice in Aging Fact Sheet says about that: "Losing Coverage for Nursing Home Care. 62% of nursing home residents rely on Medicaid. For the vast majority of these 850, 000 nursing home residents, Medicaid coverage is provided through an eligibility category that is "optional" under federal Medicaid law. As states face insufficient funding, they will look for optional categories to cut, putting nursing home residents at particular risk."  Both the Issue Brief and the Fact Sheet fail to take into account the aging of America by tethering the cap to "baseline years".  As the Brief notes

[T]he fourth problem is that the Senate bill’s per capita cap fails to recognize how increasing age corresponds to a greater need for health care. In 2011, for example, persons aged 85 and over incurred average Medicaid costs that were 2.5 times higher than the average costs incurred by beneficiaries aged 65 to 74.35

Assume that a state currently has a large percentage of Medicaid beneficiaries in their early 70s. The base rate for that state will be weighted heavily towards the average health care needs of persons in their 70s, and that weighing will affect the cap amounts imposed in 2027, when the large group of beneficiaries will be in their early 80s — with different and more extensive needs for health care. Notably, such a shift in population from the young-old to the old-old is more likely than not, given the overall aging of America’s population. From 2025 and 2035, approximately two-thirds of the states will experience a rise in the share of seniors who are 85 and older. In most cases, the increase will be at least 25%. (citations omitted).

If these folks in nursing homes need a level of care that can't be provided by their families (if they even have families) and Medicaid is cut, what's the answer?  Right now, all we can do is wait and see what happens with the Senate this week. Right now, the vote is projected to take place on Thursday.

 

Age with Dignity Video

Last year, Justice in Aging produced a video, See Me Age in Dignity, in celebration of Pride Month.  Justice in Aging recently sent out a reminder about thee video:

LGBTQ older adults face unique challenges as they age—caused by a lifetime of discrimination and bias. LGBTQ older adults are more likely to be poor and face social isolation because of thin family support structures. They may also have difficulty visiting doctors, receiving competent care that’s tailored to their needs, or even finding an attorney who understands their issues. Since June is Pride month, and much of the point of Pride is to promote visibility of LGBTQ people, we created a short video, See Me Age in Dignity, to bring visibility to the unique needs of LGBTQ older adults as they age. Please watch the video and share it widely. This video was created as a companion piece to our 2016 Special Report on the unique legal needs of older adults.

It was worth watching last year and it's worth watching now!

 

Coming of Age in Aging America: Coming Soon to a Channel Near You

Are you aware of the Coming of Age in Aging America Project, a "one hour documentary distributed by American Public Television [that] asks … 'What will it mean for us all to grow up, live and age in a society where a third of the population is over age 65?' We are an aging society – and will continue to be. Coming of Age in Aging America explores the demanding reality of this permanent transformational phenomenon."

According to the website

Coming of Age in an Aging America is an extensive public media project aimed at creating conversation and action to productively shape America as an aging society. Content was developed in collaboration with the MacArthur Network on Aging and Society.

Click here to preview the temporary schedule. Coming of Age will also be available on the Next Avenue website (www.nextavenue.org) from June 2017 through August 2017.

are an aging society – and will continue to be. Coming of Age in Aging America explores the demanding reality of this permanent transformational phenomenon.

It will air June 30-July 1, 2017 on the WORLD channel.

ACTEC Engagement Letters

We previously let you know that ACTEC has released the 5th edition of its Commentaries to the Model Rules of Professional Conduct. Now ACTEC has released a new edition of their engagement letters. Engagement Letters A Guide for Practitioners (3rd ed. 2017) is available as a pdf.  There are 9 chapters with introductions, explanations, checklists and forms.  The introduction explains the book's organization:

Following this introduction, there is a general checklist designed to aid the lawyer before preparing the engagement letter in any trust and estate representation. The general checklist includes cross references to the specific checklists and forms that follow. Following the general checklist, there are nine chapters, each with a basic engagement letter form or specific language to be added to, or used in conjunction with, a basic engagement letter form addressing:

Chapter 1: Estate Planning Representation of One Person or Spouses;

Chapter 2: Representation of Multiple Members of the Same Family Other Than or in Addition to Spouses;

Chapter 3: Representation of Multiple Parties in a Business Context;

Chapter 4: Estate Planning Lawyer Serving as a Fiduciary;

Chapter 5: Representation of Executors and Trustees in Administration Matters;

Chapter 6: Representation of Guardians/Conservators;

Chapter 7: Probate Litigation;

Chapter 8: Dealing with Diminished Capacity or Death of a Client Not Represented in a Fiduciary Capacity;

Chapter 9: Termination of Representation.

The introduction also offers a caution regarding the use of forms, a great reminder for all attorneys.

 

 

Veteran's Family Caregiver Support

According to a recent article in the Washington Post, not all family caregivers of vets are treated equally. Law makes VA treat some family caregivers better than others explains that  for "veterans injured on duty, Uncle Sam pays more attention to some of their caregivers than others. The law allows the government to provide caregiver services for vets injured on Sept. 11, 2001, or after, but not those injured before that ...." On June 19, 2017, the Disabled American Veterans (DAV) organization released a report about its efforts, the "Unsung Heroes Initiative" to change the law. The DAV describes this, according to the article, as  “a national campaign to raise awareness about the service and sacrifice of caregivers to America’s severely disabled veterans as well as the inequities of supports available, particularly for those injured before 9/11.”  Bills are before Congress to change the law "that would make all veterans, no matter when they served, eligible for the caregiver support."  The article also references a recent Veterans' Affairs Committee hearing on budgets, with testimony, etc. available here.

How Do You Read Your News?

You are reading this blog either on your computer, your smart phone, your tablet, or some other device that I didn't mention. You are not likely reading this in hard copy. What about your daily dose of news in the morning? Do you read a physical copy of a paper? Is a morning news show (television or radio) part of your routine?  If you are in the group of folks 50 and over, more and more you are likely reading your news on a mobile device, according to a report released by Pew Research Center. A fact tank report,  Growth in mobile news use driven by older adults tells us the uptick is strong: "[m]ore than eight-in-ten U.S. adults now get news on a mobile device (85%), compared with 72% just a year ago and slightly more than half in 2013 (54%). And the recent surge has come from older people: Roughly two-thirds of Americans ages 65 and older now get news on a mobile device (67%), a 24-percentage-point increase over the past year and about three times the share of four years ago, when less than a quarter of those 65 and older got news on mobile (22%)."  Those in the 50-64 age group also show a strong adoption of news on mobile devices with "79% now get news on mobile, nearly double the share in 2013. The growth rate was much less steep – or nonexistent – for those younger than 50." 

Why this increase you wonder? Wonder no more. The report explains the growth is partially due to the fact that fewer of elders had been using mobile devices for their news, so there was opportunity for greater adoption than younger age groups who were already strong adopters.  So even though more elders are using mobile devices for their news, it doesn't mean they are liking it!  The report explains that those 65 and older aren't particularly keen on doing so with "[o]nly 44% prefer mobile ... [and] those 50 to 64 ... prefer to get their news on mobile (54%), up from about four-in-ten (41%) a year ago."

 

Saying No to Home Health Services & Wanting to Be Left Alone

Consider those who need home health care but say no. Kaiser Health News recently ran a story on this very topic. Some Seniors Just Want To Be Left Alone, Which Can Lead To Problems explain that the percentage of those who want to be left alone is higher than you may think.  "As many as 28 percent of patients offered home health care when they’re being discharged from a hospital — mostly older adults — say “no” to those services, according to a new report."  The report is from a roundtable that was sponsored by the Alliance for Home Health Quality & Innovation and United Hospital Fund.  The report, I Can Take Care of Myself: Patients' Refusals of Home Health Care Services runs 23 pages.

Here are highlights of the report (found on page 1): 

 

• Medical care is moving from hospitals and other institutions into the community, which for most people means care at home, where they want to be. With shorter hospital stays and more complex post-discharge needs, the importance of home health care services, including skilled care and personal care, in discharge planning and transitional care is increasing.

• Some studies show that patients who receive home health care after hospital discharge are less likely to be readmitted. Other studies show that patients who receive home health care report better quality of life.

• Although data are limited, approximately 6-28 percent of patients eligible for home health care refuse these services, for a variety of reasons.

• Even less is known about the process by which hospital staff identify patients for referral to home health care, how they explain these services, and how well they address the full range of patients’ and family caregivers’ transitional care needs.

• Patients and their family caregivers have similar goals but may have different needs and attitudes about home health care.

• Policy and system barriers to accessing services include inflexible criteria for eligibility, inadequate payment for home health care agencies’ services for patients with complex conditions, and shortages of trained workforce.

• Recommendations from Roundtable participants include interventions that improve communication about care challenges and home health care services, qualitative and quantitative research on all aspects of home health care refusals, policy changes to increase access and coordination, and continuity across providers and care settings.

Denver DA & PD Units on Elder Abuse

The Denver Post reported recently that the Denver DA and the Denver Police are taking steps to combat elder and vulnerable adult abuse.  Denver DA, police form units to protect elderly, developmentally disabled   explains that the DA has created a division within the office on elder abuse. As well the Chief of Denver PD has established a special victims unit  for elders and vulnerable adults who are victims of abuse.  The DA's division "will focus on physical abuse and neglect crimes against at-risk adults aged 70 or older, as well as adults with intellectual or developmental disabilities ... [as well as] prosecute financial fraud cases that target at-risk adults." The PD unit will work together with DA investigators and social workers to investigate reports. 

Colorado uses age 70 for victims of elder abuse, and the law includes mandatory reporting.  The law seems to be having a positive effect, based on the statistics in the article: "the number of Denver police investigations related to at-risk adults climbed adults climbed 271 percent from 228 to 847 cases between 2013 and 2016, according to department statistics. Elder abuse cases make up the bulk of the cases. Police investigated 735 elder abuse cases in 2016, a 418 percent increase above the 142 cases investigated in 2013."

Quick Social Security Quiz

When thinking about Social Security for retirement purposes, we know that recipients can be confused about when to draw benefits. But it may also be unclear what type of benefits are available for certain beneficiaries. So Kiplinger's Social Security quiz is a quick and easy way to test your Social Security knowledge. The 10 multiple choice questions covers topics such as early retirement, spousal benefits, the effect of divorce, dependent benefits, the trust fund and the future of Social Security. Check it out!

Your Estate Planning IQ?

Kiplinger has a nifty quiz for you to test your knowledge about estate planning. The quiz, What Do You Know about Wills and Trusts? Test Your Estate-Planning Smarts consists of 10 multiple choice questions with explanations once you have answered a specific question.  Take the quiz - it only takes about 5 minutes. Your results are instantaneous and you can compare your knowledge against the rest of us (the average is 7 correct answers out of 10). If you teach Trusts & Estates, this would be a good exercise to give during the first class!

FINRA Guidance and Rogue Brokers

According to a recent story in Investment News, FINRA is going to provide brokerages with more guidance on dealing with "rogue brokers." Finra CEO Robert Cook promises to give brokerages more guidance on overseeing rogue brokers  explains that "[FINRA] intends to help brokerages better identify and supervise brokers with checkered disciplinary histories who may pose risks to investors. In coming months, the broker-dealer self-regulator will delineate [FINRA's expectations]...." The article relates pressures on FINRA to do something about brokers that move from firm to firm.

At its May meeting, Finra's board advanced proposals that would allow tougher penalties for brokers with certain past infractions, enable disciplinary hearing panels to restrict the activities of brokers and firms while a case is on appeal, and require firms to strengthen supervision while a "disqualification request" is under review or a broker is appealing a hearing decision.

There's a working group on this issue and FINRA is considered other measures, with any final regs needing SEC approval.

The Department of Labor Fiduciary Rule

Parts of the Department of Labor Fiduciary Rule is finally in effect, but whether the rule with stay or be repealed remains to be seen.   Investments News ran a recent article, DOL fiduciary rule takes effect, but more uncertainty lies ahead.  The article explains that "[t]wo provisions of the measure, which requires financial advisers to act in the best interests of their clients in retirement accounts, become applicable [June 9th]. One expands the definition of who is a fiduciary, and the other establishes impartial conduct standards." According to the article, the entire rule is scheduled to go into effect January 1, 2018, but that may be delayed since the agency is undertaking regulatory reviews as part of the mandate from the administration.  As far as the 2 regs in effect, the article explains that those "will govern adviser interactions with clients in retirement accounts. Under those provisions, advisers must give advice that is in the best interests of their clients, charge reasonable compensation and avoid "misleading statements" about investment transactions and what they're being paid."  There is a grace period until July 1, 2018 regarding advice being given to clients, as long as the "fiduciaries who are working diligently and in good faith to comply with the fiduciary duty rule." 

The article also mentions that the SEC has asked for comments regarding fiduciary duty.

Stay tuned....

Free Webinar: Impact of Undue Influence, Advanced Webinar on Elder Abuse

Justice in Aging has announced its next webinar, Elder Abuse – The Impact of Undue Influence., scheduled for June 27, 2017 at 2 p.m. edt.  Here is the summary of the program

Perpetrators of financial exploitation and other forms of elder abuse may exert undue influence to control the decision-making of their victims. Learning to recognize signs of undue influence will help legal and aging network service providers prevent or redress elder abuse and enhance victims’ access to justice.

Lori Stiegel and Mary Joy Quinn, nationally recognized experts on elder abuse and undue influence, will present this advanced webinar, Elder Abuse: The Impact of Undue Influence, to help legal and aging network professionals understand the dynamics and indicators of undue influence, and the relationship of this psychological process to elder abuse and guardianship.

During this training, Lori will discuss the concept and its connection to capacity and consent, tactics and process, and legal remedies. Mary Joy will provide an example of how undue influence is defined in California law and share an undue influence screening tool for Adult Protective Services that lawyers and other professionals should be aware of and can use in their own practice.

To register for the webinar, scroll to the bottom of the page and click on the register now button. .

Veterans "Hidden" Benefits

Kiplinger's ran an article about less noticed veterans benefits. Vets, Don't Miss Out on 'Hidden Benefits' discusses life insurance, hearing aids, spouse and dependent benefits (DIC), health insurance, directed care, Agent Orange benefits, Aid & Attendance, home modification and coverage for conditions from the water at Camp Lejeune  to name a few.  The article offers information about eligibility, where to get help, how to apply for benefits and more.

Don't Forget World Elder Abuse Day

World Elder Abuse Day is June 15, 2017. Here is the info from the Administration for Community Living

Each year, an estimated 5 million older adults are abused, neglected, or exploited. Older Americans lose an estimated $2.6 billion or more annually due to elder financial abuse and exploitation, funds that could be used to pay for basic needs such as housing, food, and medical care. Unfortunately, it occurs in every demographic and can happen to anyone—a family member, a neighbor, even you. It is estimated that only one in five of these crimes are discovered.

World Elder Abuse Awareness Day (WEAAD) was launched on June 15, 2006 by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations (UN). WEAAD aims to provide an opportunity for communities around the world to promote a better understanding of abuse and neglect of older persons by raising awareness of the cultural, social, economic, and demographic processes affecting elder abuse and neglect. In addition, WEAAD is held in support of the UN International Plan of Action acknowledging the significance of elder abuse as a public health and human rights issue. This observance serves as a call-to-action for individuals, organizations, and communities to raise awareness about elder abuse, neglect, and exploitation.

Access the latest World Elder Abuse Awareness Day campaign materials available from the USC Center on Elder Mistreatment . Logos, web banners, stationary templates, sample press releases, and more are available.

Calculating Your Retirement Savings Needs

We've mentioned various retirement calculators before. Kiplinger's recent letter mentioned this calculator-it's very easy and takes little time to get your results!  Here's the description

Our exclusive Retirement Savings Calculator will help you estimate the future value of your retirement savings and determine how much more you need to save each month to reach your retirement goal. Actual results will depend on how much you contribute to your retirement accounts, the rate-of-return on your investments, and how long you live. (The calculator does not take taxes on your retirement income into account so your actual spendable income will be less.)

Try it out. It really is quick and easy. It would be a great tool to use with our students to get them thinking about financial security and the importance of planning for retirement.!

CMS Reverses Course on Pre-Dispute Arbitration Clauses

I'm just going to start off with my opinion on this latest action by CMS: bummer. Now I'll tell you what CMS is doing and you can decide if you agree with their course of action, or not.  As you may recall, last fall CMS issued the revised nursing home regs (which we've blogged about before-you can search the archives for them, if you want). One of the regs getting a lot of attention was the reg that prohibited the use of pre-dispute arbitration clauses in nursing home admission contracts. Now CMS has announced they are reversing course.  They will no longer prohibit pre-dispute arbitration clauses under the proposed amendment to the rule. Instead the proposed rule  allows the use of arbitration clauses if certain notice requirements are met. The summary explains that CMS

would revise the requirements that Long-Term Care (LTC) facilities must meet to participate in the Medicare and Medicaid programs. Specifically, it would remove provisions prohibiting binding pre-dispute arbitration and strengthen requirements regarding the transparency of arbitration agreements in LTC facilities. This proposal would support the resident’s right to make informed choices about important aspects of his or her health care. In addition, this proposal is consistent with [CMS] approach to eliminating unnecessary burden on providers.

The specific amendments to 42 C.F.R. 483.70(n) appear on pages 20-21 of the notice.  The notice is scheduled to be published in the Federal Register on June 8 and the comment period closes 60 days thereafter.