Join us for our 5th annual National Voices of Medicare Summit & Senator Jay Rockefeller Lecture! Connect with leading experts and advocates to discuss best practices, challenges and successes in efforts to improve access to quality health coverage and care. Be a part of the conversation on health care activism, civic engagement, and efforts to preserve (and enhance) the Affordable Care Act, Medicare, and Medicaid. We're honored to have Senators Chris Murphy and Jay Rockefeller present to help participants think about building a healthy future for all Americans.
Wednesday, February 28, 2018
On Feb. 13, Kaiser Health News hosted an informative and important discussion about improving care and services for people with dementia and supporting their caregivers. It was opportunity to learn from experts in the field about the challenges and difficulties facing the patient, the caregiver, the community and policymakers. Topics included understanding the stages of dementia from a medical, social, psychological and environmental perspective (it’s not just memory loss); how to find help; how to manage difficult behaviors; and understanding medications for people with dementia.
The 90 minute discussion can be viewed by clicking here.
Tuesday, February 27, 2018
As part of the Bipartisan Budget Act of 2018, signed into law earlier in February, Medicare's therapy caps were repealed! As explained by Justice in Aging in a recent fact sheet, ""[t]he law permanently repeals the payment cap on outpatient physical, occupational, and speech therapies effective January 1, 2018, and makes changes to the medical necessity review process for these services." As well, the law closes the donut hole one year earlier, "at which time beneficiaries will be required to contribute 25% to the cost of prescription drugs. This provision does not affect coverage for beneficiaries who receive the Part D low-income subsidy known as “Extra Help,” since they already don’t experience the donut hole."
Then there is the change to Home Health Care, starting in 2020, where "[t]he home health payment episode will be reduced from 60 days to 30 days and therapy thresholds will be eliminated. Beginning in 2019, Medicare will be allowed to base eligibility determinations for home health services on a review of the patient’s medical record including a home health agency’s record beginning in 2019." As well, the Part B and D premiums for higher income beneficiaries will go up starting in 2019.
To read the entire fact sheet, click here.
U.S. Supreme Court Agrees to Hear Death Penalty Case; Inmate Has Suffered Multiple Strokes & Dementia
One of my well-rounded Contracts students, Andrew Ford, pointed out to me that this week the Supreme Court agreed to hear the case of Madison v. Alabama, wherein the issue is whether execution of a prisoner violates the 8th Amendment if the inmate, who has experienced multiple strokes and vascular dementia, is now severely impaired and no longer has any memory of his crime. From the Petition for Writ of Certiorari:
[T]he State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vessel ischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.
Thank you, Andrew! Here's the link to comprehensive coverage on the case from SCOTUS Blog
Monday, February 26, 2018
Registration is open for the Center for Medicare Advocacy's 5th Annual National Voices of Medicare Summit & Sen. Jay Rockefeller Lecture on March 22, 2018. The conference runs from 8:30 a.m. to 5 p.m. at the Kaiser Family Foundation, 1330 G Street, NW in Washington, D.C. Here's a brief description about the program
PA Appellate Court Rules Against Elder Care Planning Company Suing Elder Law Attorney for Defamation
In a "nonprecedential memorandum" -- but still interesting opinion -- filed on February 14, 2018, the Pennsylvania Superior Court affirmed summary judgment in favor of defendants on an issue of defamation. The plaintiff is a retirement or planning company and the defendants are a law firm and an elder law specialist attorney in that firm. The plaintiff alleged defamation and intentional interference with business relationships via letters on the law firm's letterhead that were signed by the defendant Attorney while serving on a county senior citizens board.
The letters allegedly pointed to certain marketing presentations from companies that present programs on living trusts and estate planning, referencing plaintiff as "one such company." According to the court opinion, the "correspondence characterized the presentations as a 'sinister form of financial exploitation of the elderly' that 'often result in seniors losing thousands of dollars in unnecessary fees for documents they do not need,' and that 'can also result in the sale of investments that are not appropriate for seniors.'”
The plaintiff Company's lawsuit was filed in January 2008.
The defendants sought summary judgment on the defamation count in October 2016.
Under Pennsylvania statutory law, 42 Pa. C.S.A. Section 8343(a)(6), a plaintiff has the burden of proving specific elements of defamation including "special harm resulting to the plaintiff from . . . publication" of the alleged defamatory communication. The defendants argued the plaintiff was unable to satisfy that element.
In the memorandum opinion, the Superior Court concluded:
Appellant incorrectly maintains that it did not have to prove the existence of any harm because the letter in question accused it of engaging in misconduct or fraud in marketing living trusts to senior citizens. While it did not have to establish economic loss, it did have to adduce some proof that its business reputation was affected by the communication. Appellant admitted to the trial court that it could present no witness to attest that its reputation in the community was harmed due to the dissemination of the correspondence in question. Since Appellant had the burden of proving that aspect of its defamation cause of action, summary judgment was properly entered herein.
For more, read the nonprecedential opinion in United Senior Advisors Group, Inc., v. Leisawitz Heller Abromowitch, Phillips., PC., and William R. Blumer. The final footnote in the opinion suggests the summary judgment ruling resolves only the defamation count in this long running suit.
February 26, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, February 25, 2018
I had the honor of attending and speaking at Australia's 5th Annual National Elder Abuse Conference, held recently in Sydney. Speakers at the two day conference included many government dignitaries, a series of concurrent sessions and a number of abstract presentations. The conference offered a multi-disciplinary, multi-cultural focus and included a wide-range of topics over the conference. I found the energy level and interest at this conference to be high. I moderated a panel of law enforcement and community activists and their efforts are outstanding. One of the interesting points to me was that the problems they're facing here are so similar to those in the US. Exchanging information about prevention and responses was very useful. Post-conference information about recordings of the sessions will be available soon on the conference website. This is a conference well worth attending, even though Australia is a bit of a trek from the US. The conference rotates locations within Australia, so the website will also have information about dates and locations for the 2019 conference.
As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals. The Court tackles head-on the issue of who has the power to take action to address improper discharges.
On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge." Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits.
In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.
The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland. The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state. As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."
There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see State of Maryland v. Neiswanger Management Services LLC..
For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.
See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.
February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, February 23, 2018
The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note. From the opening paragraphs:
Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.
The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.
Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.
This article is definitely worth a careful read.
February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, February 22, 2018
Federal Authorities Coordinate Filing of Charges Against Individuals and Companies on Telemarketing and Postal Mail Fraud Schemes
On Thursday, February 22, 2018, federal authorities released news of formal charges filed against individuals and companies accused of telemarketing and postal fraud schemes targeting seniors. The charges focus on more than 250 defendants, located both in and outside of the U.S.
The Federal Trade Commission's press release provides specific details from two cases filed in coordination with authorities in the State of Missouri. In the first case:
[T]he FTC and the State of Missouri charged two men and their sweepstakes operation with bilking tens of millions of dollars from people throughout the United States and other countries.
The FTC and Missouri allege that the defendants, doing business under dozens of different names, sent tens of millions of personalized mailers falsely indicating that the recipient had won or was likely to win a substantial cash prize, as much as $2 million, in exchange for a fee ranging from $9 to $139.99.
The Defendants distributed three types of phony mailers:
- Notices such as “Congratulations, You Have Just Won $1,230,946.00,” when the consumer hasn’t actually won anything;
- Fliers that claim the recipient can win a substantial cash prize by answering a simple arithmetic question and paying a registration fee, but that don’t disclose that there are multiple rounds to the “game of skill,” that the consumer will have to pay additional fees to advance to each round, and that in order to win, the consumer will have to answer a final, complex puzzle that few people, if any, can solve; and
- Mailers that appear to be notices that the consumer has won a prize of $1 million or more, but that are really just newsletter subscription solicitations.
In the second case:
[T]he FTC alleges that the defendants worked with Indian telemarketers to trick older Americans into buying bogus technical support services. Specifically, the defendants set up business accounts for the telemarketers, collected and deposited consumer payments, and provided a gloss of legitimacy to the scheme.
During my sabbatical last year, I often had occasion to answer the phone in my elderly mother's home. The majority of calls were from scammers, including those posing as the IRS, those offering "specialized health insurance," or seeking to "confirm" the homeowners' bank numbers for deposit of some kind of "winnings." I was stunned by the volume of the calls -- and the persistence of the callers. If you tried to hang up, the callers would often ring back within seconds.
Also, during my time as director of Dickinson Law's Elder Protection Clinic, I can remember one particularly troublesome case involving a so-called Jamaican lottery scam, where the senior in question had been a sophisticated investor for her entire adult life, but was unable to resist the siren song of a scammer who managed to convince her to repeatedly send him money. It was one of my first personal experiences with how dementia and financial abuse can intersect, through a particular form of early onset dementia known as FTD (frontotemporal disease). The impairment often impacts judgment and the ability to evaluate risk, including financial risk.
February 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, February 13, 2018
My family has been struggling with the issue of what to do about the increasing safety risk of a family member who, at age 90+, is still a smoker, but now also a smoker with dementia. Our family has long since given up on the direct health risk of smoking for the individual. But the evidence of a greater risk is everywhere: small burn holes in the carpets, on the arms of a favorite chair, and even melted spots on the linoleum on the kitchen floor beneath the smoker's chair. The latest sign of a serious problem frightened us the most -- a burned hole in the sheets of the bed. Before dementia this individual never smoked in bed; but with dementia, plus problems walking and sitting in a chair, she began to insist on her "first" morning cigarette while still in bed. The situation requires constant monitoring -- but even that is a challenge as it can be hard to find companions who can tolerate this level of smoking.
There is plenty of evidence the risk is more than just to the smoker's health. See, for example, the news link below for a report on a fire that caused the death of the elderly smoker and injuries to the firefighters.
For discussions of approaches to managing, if not stopping the elder's smoking, see also Caring.com on "Should I Take Cigarettes Away From My Mother, Who has Alzheimer's? One person commenting on the column, describes the situation with his own mother as a "dreadful problem. . . . It is the most difficult situation I have ever faced with her and there is no easy solution." Another person provided the following history:
The problem has miraculously resolved itself with the help of some very skilled caregivers. I had to move my [92 year old] mother to a Memory Unit in an Assisted Living Facility. They agreed that she could have 4 cigarettes per day under their supervision. They made an exception for her. For the first several months she asked repeatedly all day long for a cigarette. They patiently distracted her by redirecting her attention or promising a cigarette after dinner, whatever. It didn't stop her begging for a smoke over and over but now, at age 94 and with advancing dementia, she has almost forgotten that she's a smoker.
That's an important caveat -- with dementia, at 94 -- she has "almost forgotten that she's a smoker."
Monday, February 12, 2018
Sorry for the late news but Kaiser Health News is offering a live discussion via Facebook Live! and Twitter on "Living Well with Dementia" on Tuesday, February 13, from 12:30 to 2:00 p.m. Eastern Time.
Hear are details:
Join Kaiser Health News on Tuesday, Feb. 13, from 12:30 to 2:00 p.m. ET for an informative and important discussion about improving care and services for people with dementia and supporting their caregivers. It’s an opportunity to learn from experts in the field about the challenges and difficulties facing the patient, the caregiver, the community and policymakers. Topics will include understanding the stages of dementia from a medical, social, psychological and environmental perspective (it’s not just memory loss); how to find help; how to manage difficult behaviors; and understanding medications for people with dementia.
Kaiser Health News’ “Navigating Aging” columnist Judith Graham will moderate a discussion with you and a panel of experts as we explore this issue.
Our panelists are:
- Nancy A. Hodgson, Ph.D., RN, FAAN, University of Pennsylvania, an expert on dementia care and end-of-life care for people with dementia;
- Helen Kales, M.D., University of Michigan, a geriatric psychiatrist and expert on dementia care and mental health issues;
- Yvonne Latty, BFA, MA, a journalist and professor, who is dealing with her mother’s Alzheimer’s;
- Katie Maslow, MSW, Gerontological Society of America, an expert on improving care for people with dementia and supporting their caregivers; and
- Mary L. Radnofsky, Ph.D., a former professor who lives independently since being diagnosed twelve years ago with dementia and is an advocate for people with dementia.
Sunday, February 11, 2018
On February 7, 2018, the Seventh Circuit ruled as a matter of law that language in documentation attempting to create a Special Needs Trust was ambiguous. In its decision in National Foundation for Special Needs Integrity, Inc. v. Reese, the Court resolved the ambiguity in favor of the children of the Missouri woman who had established the trust, using proceeds of her personal injury settlement.
The Court, with jurisdiction that appeared to be based on diversity, ordered an Indiana foundation that was named as the trustee of the account to reimburse the estate of the deceased Missouri woman. The amount awarded is more than $243K, plus prejudgment interest. The decision by itself is interesting, especially as it touches on issues such as the intention of the settlor, a defense of laches and the roles of a law office or others in counseling the Missouri woman, who was reportedly unable to read, on how to complete the trust documents. Even more interesting is news indicating that the foundation was created by "a suspended Indiana attorney facing charges that he stole from other clients' trusts." See The Indiana Lawyer's report on Seventh Circuit Reverses, Orders Special Needs Trust Group to Pay Estate.
In the lawsuit, the foundation argued it was entitled to keep the funds designated in the trust, based on a variety of theories including laches; the laches defense failed when the court, in an extended footnote, observed there was no evidence the foundation ever notified the woman's personal representative of outstanding trust amounts, allowing the PR to believe that any proceeds had been used to reimburse the state for Medicaid expenditures. Instead, the court concluded the foundation simply transferred portions of the mother's account into other accounts, which might have been permitted under certain guidelines, if it had been clear the trust was intended to be a "pooled" special needs trust.
For another "great and timely" discussion (I have that description on good authority!) of the Foundation v. Reese case, see Arizona lawyer Robert Fleming's newsletter here. As Robert says, "the background story . . . reinforces the need for transparency and disclosure in pooled special needs trust administration -- and in fact, in all special needs trust management."
Wednesday, February 7, 2018
Mark your calendars for this webinar from the Elder Justice Initiative scheduled for February 22, 2018 at 2 est, on MDT Member Recruitment and Retention: Building Trust and Traction Here are the learning objectives from the website
Understanding the best practices for recruitment and ongoing engagement of team members.
Exploring real-world examples of relationship- and trust-building strategies.
Monday, February 5, 2018
On Saturday, February 3, 2018, The New York Times published an article under the heading of "Politics," entitled "US Pays Billions for 'Assisted Living,' But What Does It Get?" The article points to a forthcoming GAO report, reportedly due to be released imminently. Keep an eye on GAO.gov, under the tab for "reports." According to the NYT, "the new report casts a harsh light on federal oversight, concluding that the Centers for Medicare and Medicaid Services has provided 'unclear guidance' to states and done little to monitor their use of federal money for assisted living."
The Government Accountability Office report was requested by members of the Senate Special Committee on Aging in July 2015, with results expected in "early 2016," according to earlier news stories. Nineteen months is an exceptionally long leadtime for the actual report, in my experience.
GAO studies of assisted living (AL) highlight a dilemma for the senior living industry. On the one hand, operators would like to see better funding made available through Medicaid for AL, a view probably shared by families. As explained by LeadingAge executive Stephen Maag, for McKnight's last year, he hoped the GAO study would highlight a "major weakness," as home- and community-based Medicaid "waiver" programs often cover certain AL services, but not room and board. Alas, federal standards typically are tied to nationwide funding, and AL operators reject there is any need for federal oversight of AL.
The irony is that I'm typing this post while sitting with a family member and other residents in an AL center (in fact, that's why I haven't yet had time to add hyperlinks to the key articles and websites mentioned above). Regular readers of this blog will know this isn't my first time spending the night in AL or in other types of senior living.
Personally, I have great respect for well-run AL operations, and I appreciate that AL often has the flexibility to design smaller and more creative operations that can provide consumers with real choices. But I reject the often repeated contention, that appears again in the above NYT's piece, that AL "communities are a bridge between living at home and living in a nursing homes." That makes AL sound like a compromise in care.
Assisted living communities do not simply function as some sort of way-station to so-called "skilled"care. Rather, AL sites are often the last home for older adults. They serve individuals who need more help than families can provide in the individual's former home. AL are often purpose-built for seniors and can use their staff to provide vital supervision for those with dementia. The best AL offer appropriate daily activities. In fact, yesterday, I sat in on a first yoga lesson for a 90 year old woman.
In my experience, a well-run assisted living center can reduce hospital admissions, and for individuals who have made advanced decisions to forgo end-of-life measures such as artificial resuscitation, tube-hydration or feeding, there may never be a need for other residential care. In other words, AL staff also provide skilled care, just as important but different than the kind of skilled medical care associated with a hospital or nursing home, such as wound care, catheters, or I.V.s needed for medication.
As such, states do need clear authority to inspect AL facilities for quality of care, and they need authority to close down poor operations.
February 5, 2018 | Permalink
Thursday, February 1, 2018
Indiana is announcing a first in the nation registry of guardianship so financial institutions and others can quickly verify whether an individual is under a guardianship. An article, Indiana breaking ground with online guardianship registry explains
The benefits of the registry (public.courts.in.gov/GRP/) are twofold, DeBoer said. It both helps the courts monitor the cases and grants limited public access to further help protect those in the care of guardians.
The public online registry provides the names of the protected person and their appointed guardian, the protected person's year of birth, whether the case is active or expired, the date the letters of guardianship were issued, the county issuing the guardianship and the case number, according to the state's guardianship website.
Participation in the registry is voluntary and a bit over half of the counties are doing so. The registry was several years in the making and now, according to the article
The public portion of the registry offers access to less information, but enough to be helpful to banks, hospitals, police and others, said Kathryn Dolan, chief public information officer with the Indiana Supreme Court. ...
Public access to the registry is helpful in all sorts of situations, such as police coming across someone wandering the streets who appears to be in need, Schneider said. Police could search a name and see if there is someone appointed to handle the person's needs.
The registry also helps the courts keep track of statistics related to their guardianship cases....
February 1, 2018 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)