Elder Law Prof Blog

Bank at the US Post Office?

My brother (thanks big brother-I guess this means you read the blog-yay!) sent me an article published in The Hill with an interesting proposal!  Published on April 26, 2018, The poor need bank accounts, and USPS has the answer highlights a bill introduced by Senator Gillebrand  which would create "provide a public option in basic banking services through the U.S. Postal System."

Why, you may ask, propose that the USPS get into the banking business?  Well, because there is a "persistent problem of widespread financial exclusion, which means a household is either unbanked or underbanked. Recent data shows that 7 percent of households are simply unbanked since they lack a checking or savings account at a bank."  Consider the implications of not having a bank account. If you have to cash a check, where do  you go? "Instead, they have to rely on the predatory alternative financial services, such as payday lenders, check cashing services and the like." 

The article also introduces us to the concept of "underbanked" which means "19.9 percent of American households ... at some point during the year, they rely on high-cost alternative financial services to meet their financial needs. That leaves over one-in-four American households excluded from mainstream financial services."  Although these alternatives may work for those unbanked or underbanked, they are not without costs, both financial and otherwise.

The article discusses reasons why low-income households find themselves in this situation, including a focus on higher-profit activities and closing branches.  So this is where the USPS comes in under the bill.

The Gillibrand bill seeks to address the lack of universal access through the creation of a postal bank. An added bonus of this measure is that it regulates consumer financial protection abuses by making predatory lending practices uncompetitive.

The bill would allow all households to open accounts at the post office, with a $20,000 limit on checking and savings accounts. Further, the bill allows for small-dollar loans capped at $500 at one time.

The rates on these loans are reasonable, with the bill linking the interest rates to the 1-month Treasury bill constant maturity rate, though a low, fixed rate may be preferable.

Through offering financial services at post offices, the bill would provide much of the physical infrastructure needed to counteract the trend of bank-branch closings. The USPS already has the geographic infrastructure to support universal access: a post office in every ZIP code.

The article offers suggestions for services as well as pitfalls. Interesting concept.

Multigenerational Housing-The Growing Trend in Housing

Recently the Washington Post ran an article about multigenerational homes increasing in popularity. Homes with multigenerational family members are a growing trend begins with a story of a three-generation family living in one household.  So is that what it means to have a multigenerational household?  "Pew Research Center defines a multigenerational household as one with grandparents and grandchildren or with two or more adult generations. The trend since 1980 is more people living in multigenerational homes, and a higher number of multigenerational households...." according to a Pew expert quoted for the article. In 2016 the article notes, 20% of Americans live in multigenerational households.  This trend has even affected builders who are designing some homes to accommodate these families. But it's not all about the design, the article notes. There are costs, real and emotional, that come with multigenerational households.  Design typically includes communal living spaces, such as a kitchen or living room. Compromise is the key to success here. As one of the families feeatured in the story offered

Yet, no matter how good-natured everyone is, sacrifices are inevitable. [One generation] wanted a washer and dryer on the main living level for their parents’ easy access, but that required making the living space smaller. So laundry facilities went downstairs.... “Melding design, finance and emotion is an art, not a science,” said the president of one design firm interviewed for the article. "Nevertheless, 'if you’re creative, you’re willing and you have good relationships, you can make it happen. We’re average Joes and we did it,'" said another generation while a member of the third generation offered that “It’s not like some fairy tale where everyone is always happy and gets their way, but the benefits are better than the costs.”

 

 

 

Health Affairs Blog Targets "Never-Ending Misuse of Antipsychotics in Nursing Homes"

I'm always interested in articles about the use -- misuse? -- of antipsychotic medications for older adults.  Therefore I was eager to read the recent post on the Health Affairs Blog by David Introcaso entitled The Never-Ending Misuse of Antipscyhotics in Nursing Homes. The article begins:

In response to a generic question about post-market drug surveillance posed during a February 2007 House Energy and Commerce Committee hearing, Dr. David Graham, then associate director of science and medicine in the Food and Drug Administration’s (FDA’s) Office of Surveillance and Epidemiology, stated: “I would pay careful attention to antipsychotic medications. … The problem with these drugs are that we know that they are being used extensively off label in nursing homes to sedate elderly patients with dementia … . It is known that the drugs don’t work in those settings. … But the fact is, is that it increases mortality perhaps by 100 percent. It doubles mortality. So I did a back-of-the-envelope calculation on this and you probably got 15,000 elderly people in nursing homes dying each year from the off-label use of antipsychotic medications for an indication that FDA knows the drug doesn’t work. This problem has been known to FDA for years and years and years.”

I've highlighted in bold the words that are the focus of my interest:  "It is known that the [antipsychotic] drugs don't work in those settings."  No citation to authority here - and it is the authority for this statement that I would like to see.  Is there a study of the use of antipsychotic drugs showing they "don't work" for dementia patients?  What does it mean "not" to work?  Is all "use" a "misuse" for patients who "only" have dementia?

I ask because I saw my father struggle at home for several years with dementia.  As the disease robbed him of the ability to understand where he was and why he couldn't remember things, he sometimes became aggressive.  He was still very strong.  His doctor tried various mild anti-anxiety drugs, but they seemed to interact with his blood pressure issues (and perhaps his other medications).  He would sometimes swing between aggressive behavior and losing consciousness.  Finally his doctor suggested a very small dose of an antipsychotic.  My mother was desperate for help at the time -- and thus, Dad started on the drug. This is an example of "off label" use.  I was worried, and said so, because I knew the associated concerns about increased mortality for those with dementia.  I looked for specific studies of risk versus benefit and frankly, all I could find were records showing the ratio of deaths for individuals with dementia who also were taking an antipsychotic drug.  Mere correlation is not necessarily evidence of causation. What I was looking for was a careful study of risk versus benefit.   

Over time I saw that the small dose did "work" for this one individual, my father.  He wasn't "knocked out."  He wasn't "docile."  He wasn't "asleep all the time" -- typical of the accusations that are often made about misuse of antipsychotics.  What we did see was that he was much less likely to strike out an arm or push someone hard when he was frustrated (and yes, he was still frustrated).   The small dose did not interfere with his blood pressure or the other medications he was taking.  Perhaps most importantly, he continued to live at home for many more months. Eventually it was appropriate to wean him off the antipsychotic altogether.  

One anecdotal account is not evidence.  But the fact that there reportedly continues to be "widespread"use of antipsychotic drugs by the elderly means there could be some very real need for  safe, effective alternatives. Behavioral health approaches are important, but those too can have limits in effectiveness.  I'd certainly like there to be "good" studies of the use of these drugs and any drug that might be able to help a person suffering from dementia live a less tormented life.  Not zoned out and not asleep all the time, but also not likely to harm themselves or those who on a daily basis are trying to help them live as normally as possible.    

In Continuing Care or Life Plan Communities, Do Operators Face Liability for "Failing" to Transfer Residents to Higher Levels of Care?

Just as spring is finally seeming to arrive in the Mid-Atlantic region and I'm catching up on non-classroom projects, I realized I hadn't fully understood the potential legal issues in a tragic fact pattern from last winter, when an 85 year old women died after being trapped overnight outside her home near Philadelphia in March.  The legal issues are outlined in a suit filed against the CCRC where she was living in an "independent living" unit.  The lawsuit claims her "caregivers should have known" that she needed more care, pointing to the contractual language that permitted the facility to assess and transfer her to a more  supervised setting as her care needs increased.  From the Philadelphia Inquirer on February 9, 2018 :    

Her son, Blake Rowe, a drug company scientist, has filed suit against Shannondell at Valley Forge in Audubon and its security company, Universal Protection Service LLC, claiming that they should have done more to protect his mother. She had been allowed to stay in an independent-living apartment after Shannondell knew she had a tendency to become confused and wander aimlessly, the suit says.

 

“I put my trust in them. They said they would do an assessment they never did,” said Rowe, who got the “horrible” news that his mother was in the hospital as his plane landed in Florida for his honeymoon.  As for the security company, he said, “If they were doing their rounds, someone would not be at a door for five hours freezing to death.”

Ironically, I often hear from family members protesting the compelled transition of a resident to a higher level of care, as the family members may disagree more help is needed, or feel the help can be provided adequately "in" the independent living unit.  The Inquirer article summarizes the dilemma for operators and families:  

The Hinds case also illustrates a trend in senior housing — at all levels of care, including independent living, residents are older and have more health problems than in the past — with safety implications that may surprise families. Most seniors want to be as independent as they can for as long as they can.  Families shopping for senior apartments may want to look beyond the quality of the food or beauty of the grounds and ask what will happen when a loved one declines:  Were your buildings and security designed with dementia in mind?  Whose job is it — the family’s or the facility’s — to start the conversation when a resident needs more help?

For more on the "Hinds" case, see His Elderly Mother Wandered Out Into the Cold and Died.  Whose Fault Was It? 

 

How a Dementia Diagnosis Depletes Life Savings

The San Jose paper, the Mercury News ran an important story about the impact of dementia on life savings. This isn't something new to elder law attorneys, but it's an important recognition of how Medicare covers health care based on a diagnosis.  How dementia can drain a family’s life savings  offers this heading " Medicare offers no help for the high costs of dementia caregiving."  We know that Medicare has certain requirements for coverage. As the article explains it

”Medicare is a lifeline for seniors and the disabled, paying for “medically necessary” costs such as hospitalization, surgery, chemotherapy, transplants, medications, pacemakers and other interventions... A dementia diagnosis demands none of that. What it does require, however, is around-the-clock “custodial care,” such as help with eating and dressing, and constant supervision. That’s not covered by Medicare. And it’s extraordinarily expensive, according to a report released last month by the Alzheimer’s Association...Families’ out-of-pocket costs for a patient with dementia are 80 percent higher than the cost for someone with heart disease or cancer, according to a 2015 study in the Annals of Internal Medicine.

How much can families expect to spend caring for those with dementia?  The story says 60 BILLION (yes that's not a typo-60 BILLION) based on a report from the Alzheimer's Association.  That doesn't include those who have early onset Alzheimer's.

The options are few for those with this diagnosis.  Long Term Care Insurance, paying privately, Medicaid quite possibly, but really not Medicare unless there is a hospitalization. Forget home care or memory care being covered by Medicare, the article notes.

This is not a new issue but it's certainly becoming a bigger issue with the significant number of Boomers. Read the article. It's important!

 

Commission on Law & Aging-Latest Issue of BIFOCAL

Happy Friday! If you haven't read the latest issue of BIFOCAL, the publication of the American Bar Association Commission on Law & Aging, check it out here. This issue contains 6 articles, including the implications of the tax bill on older Americans, POLST issues to avoid, the new Medicare cards, a book review, and a preview of the 2018 NALC conference.  Access the latest issue here.

New Jersey's ORANJ - 2018 Annual Meeting HIghlights

On April 24, 2018,  members of the Organization of Residents Association of New Jersey, or  ORANJ, held a plenary meeting at Cedar Crest Retirement Community in Pompton Plains, New Jersey.  ORANJ President Ron Whalen began the meeting with an update on pending legislation attempting to resolve residents' concerns about timeliness of payments on "refundable fee agreements."  Part of the message is reflected in the history of Pat Lund, a resident of a CCRC in Waterford Township, New Jersey, who waited eight years for her "refundable fee" to be paid after moving out of her apartment.  Under the terms of her contract, the refund was not "payable" until someone else occupied her specific unit but the facility seemed to have little interest or incentive to market her particular unit.  For more on this topic, see my update post from last week.  As summarized by Ron Whalen, "many of the 10,000 New Jersey residents in CCRCs (also known as Life Plan Communities or LPCs) have this type of contract."  

James McCracken, the new president and CEO of LeadingAge New Jersey was the afternoon speaker and he provided a roundup of topics affecting older adults in New Jersey as the legislative season draws to a close, including concerns about "earned sick leave," delayed Medicaid payments by the state to care facilities, proposed minimums on CNA staffing at care facilities, and changes to minimum wage.  

I spoke in the morning about issues I see affecting CCRCs and LPCs nationally and in New Jersey, including topics that challenge tax-exempt CCRCs, such as pressure to make payments in lieu of taxes to state and local authorities.  On the topic of resident concerns, I addressed what I call the "big three":  lack of transparency on cost and funding issues,  the need for effective resident voices in governance, and excessively paternalistic attitudes of some management. 

 This is at least my third time speaking with ORANJ members over a period of several years, and each time I visit I'm impressed with the strength of their resident organization and their ability to get the state legislature to listen.  ORANJ helped their state to be one of the first to get legislative support for CCRC residents gaining the statutory right to serve as voting members on boards of governance, and ORANJ advocacy was also  instrumental in passage of an enhanced "bill of resident rights" for CCRC operations. 

New Jersey has approximately 40 CCRC/LPC communities within the state.  Some 87 percent operate as not-for-profit, while another 13 percent are for profit.  The majority of the communities are now part of "multi-site" organizations, and I spoke with several residents who reported on pending conversions of not-for-profit to for-profit.  

  

Test Your Social Security IQ With These Quizzes!

Kiplinger offers a quiz for you to test your knowledge of Social Security. Do You Really Understand Social Security? offers a ten question quiz with explanations.  After you take that quiz, then take the Do You Know the Best Social Security Claiming Strategies? another 10 question quiz with explanations. These would also be really good to have students take to test their knowledge after you have covered Social Security in your courses.

 

Medicare's Observation Status-Impacting the Pocket Book of Patients

We have had several blog posts about the issues with Medicare's Observation Status.  A recent story on NPR (thanks to our friend Professor Naomi Cahn for sending it to us) gives us a first-person account of the impact observation status has on a patient's checkbook. How Medicare's Conflicting Hospitalization Rules Cost Me Thousands Of Dollars tells the story of a daughter who had to pay $12k for a nursing home stay for her mother's care because her mother didn't have a qualifying three-day hospital stay even though her mother was in the hospital for 4 nights. Why wouldn't Medicare pay? Say it with me now-observation status.  As the daughter relates,  her "mother was caught in an administrative wonderland where she slept at a hospital for four nights, but the paperwork said she was an inpatient only one of those nights. Medicare's rules, dating back to the 1960s, require people to spend three nights in a hospital before the federal program will pay for inpatient rehabilitative care."  She notes her frustration with the explanations that focused on rules rather than her mother's medical care:

• The doctor couldn't admit her as an inpatient because she didn't have a qualifying diagnosis.

• Her status was changed from observation to inpatient on the third day because Medicare requires that.

• They could not change her status to inpatient for the entire stay because they didn't want to be audited.

• She couldn't go to acute rehabilitation, which Medicare pays for, because there was no evidence she had had a stroke or heart attack.

She describes the competing Medicare Rules that produce this dilemma, and hospitals' concerns about audits. She also describes software that hospitals use to decide whether to admit a patient or maintain the patient on observation status. To admit or not to admit, that is the question! (with apologies to William Shakespeare).  This long-standing problem rule is well-known, and Congressional bills to fix it haven't gotten traction, she writes.  Why not shelve the three-night requirement?  The article mentions money as a likely explanation, but it appears that it is not 100% certain that is the reason, as the author cites to two studies from the '70s.

Regardless, I do think we can agree that the requirement catches some folks off guard (despite the NOTICE Act) and costs many folks who need SNF care subsequently a lot of money.

For more on the issue of observation status, visit the Center for Medicare Advocacy.

You Are Only as Old As You Feel!

You've heard the phrases such as "60 is the new 40." Now we learn there may be some truth to the thought that you feel younger than your chronological age.The Washington Post recently published this article, Cliches about only being as old as you feel are starting to have scientific backing.

The article focuses on research that indicates many folks who are older feel good about themselves and about the negative messages about aging that affect us all.  The article references "[o]ne study ... [that] found that as people get older, they consistently say they feel younger — much younger — than their actual age. Another study examining the attitudes of the offspring of centenarians concluded that the centenarians’ children — if they, too, were healthy and long-lived — have a strong sense of purpose and meaning to their lives, compared with the general population. Finally, there is evidence that positive attitudes about aging may reduce the risk of dementia, among the most dreaded consequences of aging."  Yet, we start being bombarded with negative messages about aging at a very young age. One expert noted  that kids even age 3 or 4 already have absorbed "the age stereotypes of their culture,” which it seems come from "many sources, ranging from stories to social media. Individuals of all ages can benefit from bolstering their positive images of aging.” Another expert quoted in the article explains that “[n]egative views about aging are communicated to us early in life, through media, books and movies, and what our friends and family tell us... [and that such] attitudes are present and pervasive already in childhood, so naturally it’s hard to enact meaningful change to these attitudes....”

Several studies are referenced in the article. The studies bear out the idea that folks who are older feel younger than their chronological ages, but as far as younger people's perceptions, they consider old to be a lower number than those who are old would offer. For example, one researcher offered that "teenagers and young adults equated turning 50 with hitting old age."

And we've all heard the saying about attitude is everything. It turns out those with positive views of aging help with reducing stress and decreasing chances of dementia. One research summarizes her findings: She "evaluated 4,765 older people — average age, 72 — who were free of dementia at the start of the study and followed them for four years. The participants answered a series of questions about their beliefs about aging [and the researchers] found [that] those who expressed more-positive age beliefs at baseline were less likely to develop dementia . . . than those who expressed more-negative age beliefs...."

So remember, the class is half-full and aging is not a bad thing!

It's 5 o'clock somewhere... Baby Boomers and Alcohol Consumption

Recently the Washington Post published an article comparing generational alcohol intake. Teenagers and college-age people drink less while this group pours another round opens with this observation "[e]xperts on alcohol abuse have found one demographic group that’s drinking at an alarming rate. Not teenagers. Not college-age people. It’s baby boomers." The first few paragraphs of the article focus on younger individuals and then turns to Boomers, noting that it's "been known for half a century is that baby boomers tend to like alcohol more than the “silent generation” that preceded them."

Consider this:

"Researchers see a steady rise in alcohol use and binge drinking — as well as what’s known as Alcohol Use Disorder (AUD), an umbrella term for mild, moderate and severe abuse of alcohol —  in the 65-plus demographic. Between 2005 and 2014, the percentage of older Americans who reported engaging in past-month binge drinking (defined as women consuming four or more drinks in about two hours, and men consuming five or more) increased from 12.5 percent to 14.9 percent ... [and] [t]he increase in drinking among older Americans is most pronounced among people with greater levels of education and income, and among women.... At continuing care communities, alcohol is typically available as a social lubricant for the majority of residents who haven't graduated to assisted living...."

according to one expert quoted in the article.

One thing that is implicated in this is the perception or impression that moderate alcohol consumption is healthy. "[M]any boomers have embraced the notion that moderate drinking is good for them, compared to abstaining. The evidence there is mixed. A number of studies have shown a reduction in heart attacks among moderate drinkers. But a new study published in the Lancet last week showed no overall improvement in life expectancy among people who had one drink a day compared to those who abstained, and a decrease in life expectancy with any additional drinking. The study's authors concluded that the reduction in heart attacks was offset by other health risks."

Sentate Special Committee on Aging Hearing on Guardianships

Yesterday, the Senate Special Committee on Aging held a hearing on guardians exploiting individuals under guardianship. The hearing, "Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.”  offered 4 witnesses, including elder law prof, and reporter of the new Uniform Guardianship, Conservatorship & Other Protective Arrangements Act, Associate Dean Nina Kohn. The committee chair and ranking member opened the hearing with their individual statements.  Their statements, along with the witnesses' testimonies, are downloadable as pdfs. There is also a video of the hearing, available here.

New Jersey Tackles "Refundable Fee" Issues in Pending CCRC Legislation ... and a Lawsuit

The New Jersey Legislature is considering changes to the state's laws governing "refundable" entrance fee agreements used by some Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities. 

Assembly Bills 2747/880 (and a similar bill in the New Jersey Senate, Senate Bill 1532) would limit the amount of time that CCRCs are permitted to retain "refundable" entrances fees after a resident vacates the facility.  The Assembly's bills are moving first, with significant floor amendments adopted on April 12, 2018.  Refundable entrance fees function, in essence, as a type of interest-free loan by the resident to the community.

The legislative statement accompanying Assembly Bill 2747 explains the original purpose of the proposed changes:

Under current law, a continuing care retirement community may retain an entrance fee for as long as it takes for the unit to be reoccupied by another resident.  Absent a maximum refunding period, there is little incentive for the facility manages to aggressively market any particular unit.  In some instances, a facility has retained the fee for several years after the unit has been vacated, unreasonably delaying the return of the fee.  Further, if the resident has died, an estate may be forced to pay distribution taxes on money representing the fee refund, years before the estate and beneficiaries receive that fee refund.

At the heart of the proposals is a system by which each fully vacated unit would be assigned a "sequential number" that would create an order of priority for payment of refunds, triggered when any refundable fee unit is resold.  Under the changes as originally proposed, the law would take immediate effect once passed.

The April 2018 floor amendments tinker with the language about the timing of the refunds (and my first impression is the language is confusing and could create a potential for manipulation of the order of repayments even after a sequential number has been assigned).  In addition, the floor amendments permit the facility to apply for an "alternate" method of paying refundable entrance fees based on the units' "similarity" of size and other factors; this change favors the facility. The third change delays the law's implementation date for 90 days after enactment, and also provides  that the mandatory sequential numbering system, intended to lead to more timely refunds, would apply only to CCRC agreements entered into on or after the effective date of the newly revised law.  

After catching up on the New Jersey legislature under consideration, it occured to me I should check-in on a New Jersey lawsuit about "refundable" entrance fees. In 2015, in the case of  DeSimone v. Springpoint Senior Living, Inc., the appellate division of the New Jersey Superior Court permitted residents to continue with their case asserting violation of state laws, arising out of the operators' alleged misrepresentation or failure to disclose a practice whereby the outgoing resident's refundable fees could be subject to reduction if the "resale" of that unit to an incoming resident was resold with a lower entrance fee. The appellate division explained in an unpublished opinion:

If Springpoint's staff or brochures distributed to the DeSimone family misrepresented the terms of the contract by the "lesser of" terms, or failing to disclose that the entrance fee was subject to market trends, and that the entrance fees were already being reduced by Springpoint due to market forces, plaintiff may be able to prove its various causes of action, including a violation of the [state's Consumer Fraud Act].  

A clear understanding of this reduction is important because the marketing offices may "discount" entrance fees to attract new residents, hoping to cover operating costs with monthly service fees, including any increases over time.  Refundable entrance fees are typically higher than nonrefundable entrance fees.  In Ms. DeSimone's case, she had paid $159,000, under a 90% refundable fee plan (plus monthly services fees, based on level of care).  She passed away about 16 months later.  The facility allegedly sent her estate a refund check for only $80,136, apparently reflecting, at least in part, the fact that the next resident of her unit paid a discounted entrance fee of $127,000.  

Checking in with Michael Coren, one of the lawyers representing the plaintiffs in the Springpoint case, I learned the parties have been actively pursuing discovery, and are nearing the stage where the plaintiffs' attorneys will soon ask for certification of the plaintiffs' class.  Since the original suit was filed, when there were five Springpoint CCRCs in New Jersey, the nonprofit Springpoint holdings have grown, through acquisition of three existing operations.  

These two developments in New Jersey remind me that the reason I added "Contract Law" to my teaching package (replacing Evidence) was because of how much time I was spending looking at contracts and consumer protection issues in elder law matters.  

New Issue Brief from National Center on Law & Elder Rights

The National Center on Law & Elder Rights has released an issue brief, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation.  The issue brief offers 4 key lessons:

1. Extra care in the creation of advance care planning documents can reduce the risk of abuse and exploitation.
   2. Requiring accountability, additional checks and balances, and limited authority are drafting tools lawyers can utilize to limit risk of abuse.
   3. Attorneys should advise clients to be extra diligent when selecting the agent(s) named in advance planning documents.
   4. Authorizing revocation by third parties can help to limit the damage done by named agents who start to abuse or exploit the client. 

I was intrigued by #4-the idea of naming a third party who could step in.  The section, Five Safeguards to Consider Adding to a Financial POA discusses that among others.  Here's how the issue brief explains the third party revocation provision: "Grant a power to revoke the agent’s authority to a trusted third person. This is a serious power to give any third person, so it requires an exceptional level of trust and reliability in the third person. But, if the agent’s actions prove seriously out of line, this can be a last resort. Some powers of attorney also authorize law enforcement or adult protective services to revoke the authority of the agent if they believe abuse or exploitation is taking place." Sample language is also included for each of the 5 Safeguards.

The brief discusses selection of agents and drafting health care directives in addition to drafting POAs. Practice tips are included as well as case examples. The issue brief is available here.

To learn more about the corresponding webcast click here.  To download the PowerPoint for the webcast, click here.

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

Hawaii Governor Signs Medical Aid-in-Dying bill

Hawaii's governor signed into law the medical aid-in-dying bill, making medical aid-in-dying legal in Hawaii starting January 1, 2019.  Hawaii is now the 6th state with a statute, in addition to the District of Columbia.  Montana dealt with the issue via a Montana Supreme Court opinion.  The Hawaii law provides safeguards. The law is known as "'Our Care, Our Choice' Act" and according to the article published in the Honolulu paper, took two decades to become a reality.

Do The Hospital Doctors See Your Advance Directives?

Of late it seems to me that we have seen a lot of articles dealing with issues regarding end of life wishes.   The New York Times ran an article in late March about doctors actually seeing a patient's advance directive.  You’ve Detailed Your Last Wishes, but Doctors May Not See Them is written by a doctor who summarizes first-hand experiences in a hospital with one patient in the ER who "had done everything we could have asked. He’d been brave enough to talk with his doctors about his cancer and acknowledge that time was short. He had designated a health care proxy. But there he was, surrounded by strangers, the intubation he never would have wanted looming and the record of that conversation buried in his electronic record." 

Here's how the doctor described the problem, as "not about individuals, but instead about a system that doesn’t sufficiently protect patients from getting care they do not want."  The issue it seems is documenting the info or the ability to retrieve the info in the chart.

This doctor "delved into the unexpectedly interesting world of advance care planning and electronic health records, interviewing clinicians with on-the-ground experience recording and retrieving these conversations and representatives from the companies behind some of the most widely used electronic records."  The stories shared are quite interesting and highlights the issues that arise without a national standard.

Here are some suggestions the author included in the article:

What could really make a meaningful difference, I heard time and time again, is standards for sharing, or “interoperability” across all electronic records that would benefit every patient, everywhere. At least, all related advance care planning documentation should be in one place in the medical record and accessible with one simple click of the mouse. Beyond that, maybe all health systems could require identification of a health care proxy for all patients, so we would know who should make decisions if the patient can’t. Maybe patients should be able to access their health records through a patient-facing interface, send in their own directives, or even update related notes. Ideally, the electronic record isn’t just a clunky online version of a paper chart but actually a tool to help us do our jobs better.

 

SSI 101

I know it's  near the end of the semester, so tuck this resource away for your classes for next fall. Justice in Aging has released Supplemental Security Income 101 : A Guide for Advocates. 

Here's the reason for this guide: "This Guide is designed to introduce advocates and individuals who provide assistance to older adults to the Supplemental Security Income (SSI) program. This Guide is focused on the basics of the SSI program for those who may qualify based on age (65 years or older): the benefits, key eligibility criteria, and the application and appeals processes. This Guide is intended to serve as a complement to other practice guides that focus on issues involving SSI disability determinations, eligibility, and benefits."

The guide is perfect for law students and others who need to gain familiarity with SSI, starting with an explanation of SSI and explaining the distinction between SSI and SSDI.

Great job Justice in Aging!

2018 Alzheimer's Facts and Figures

The Alzheimer's Association has released their annual facts and figures report. 2018 Alzheimer's Disease Facts & Figures also includes a special report on the benefits (personal and financial) of early diagnosis.  Here are some highlights of topics covered in the report:

• Brain changes that occur with Alzheimer’s disease …

• Revised guidelines for diagnosing Alzheimer’s disease …

• Number of Americans with Alzheimer’s dementia nationally … and for each state …

• Proportion of women and men with Alzheimer’s and other dementias …

• Lifetime risk for developing Alzheimer’s dementia …

• Number of deaths due to Alzheimer’s disease nationally … and for each state … and death rates by age …

• Number of family caregivers, hours of care provided, and economic value of unpaid care nationally and for each state …

• The impact of caregiving on caregivers …

• National cost of care for individuals with Alzheimer’s or other dementias, including costs paid by  Medicare and Medicaid and costs paid out of pocket …

• Medicare payments for people with dementia compared with people without dementia

• Benefits of earlier detection of Alzheimer's disease …

• Cost savings of diagnosing during the earlier mild cognitive impairment stage rather than the dementia stage …

There is a lot of helpful information and statistics in the report. The chart showing the numbers of those with Alzheimer's in 2018 compared to the projections for 2025 is very useful. (Just fyi, my state is expected to have a 33.3% increase). Consider this from page 21 of the report:

“[B]etween 2018 and 2025 every state across the country is expected to experience an increase of at least 13 percent in the number of people with Alzheimer’s. These projected increases in the number of people with Alzheimer’s are due to projected increases in the population age 65 and older in these states. The West and Southeast are expected to experience the largest percentage increases in people with Alzheimer’s between 2018 and 2025. These increases will have a marked impact on states’ health care systems, as well as the Medicaid program, which covers the costs of long-term care and support for some older residents with dementia.”

Read this!

 

Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation

Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:

In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.

This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.

To register, click here.