Friday, June 29, 2018

Gone Fishing!

We've gone fishing!  Becky and I have each decided to take a few official days off from writing our Blog posts.  We'll be back the second week of July.  In the meantime, Happy 4th of July!

Learning to Catch the Fish
Hopefully I'll be more successful than one of my last recorded fishing expeditions, long ago.  Although I certainly seemed to have been proud of my catch of the day!  

June 29, 2018 in Current Affairs | Permalink | Comments (0)

Hidden Costs for States to Take Over Management of Struggling Care Facilities

A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging.  She is examining what happens when struggling nursing home operations require intervention to protect existing residents.   Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager.  Ms. Brambila begins:

The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.

 

In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.

 

State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.

 

The management fee is paid by fines collected from nursing home facilities.

 

Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.

 

The average cost for managing these troubled homes exceeded $335,000.

There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers.  Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota.  According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.

For the full story, read  "Pennsylvania to pay $475,000 for temporary nursing home manager."  Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.   

June 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 28, 2018

New Infographic on Dementia Trends

The Population Reference Bureau (PRB) has  published a new infographic on trends in dementia in the US. The infographic explains

The share of older Americans with dementia is decreasing, but the total number will rise as the large baby boomer population ages and more people live longer. While education gives older adults an edge, reducing their dementia risk, racial and socioeconomic disparities in dementia are large and persistent. The most effective way to reduce dementia prevalence in the future is to postpone its onset through preventive strategies and treatments.

This infographic summarizes the latest demographic research on dementia trends, published in a 2018 special supplement to Journals of Gerontology.[1] It distills key findings from the supplement’s seven articles for policymakers and public health professionals as they plan for an aging population.

The infographic addresses age, education, gaps, costs and prevention. Check it out!

June 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Maine November Ballot Initiative Will Test Mandate for State to Provide Home Care for the Elderly and Disabled

States are certainly embracing their roles as laboratories for change in core policies.  Here's an interesting state ballot initiative to create state-mandated "home care."    

The Maine Secretary of State’s Office released on Monday [June 25] the language of a November ballot initiative that would raise taxes on wealthier Mainers to pay for home care for the elderly and disabled.

 

Secretary of State Matthew Dunlap said in a press release said that the final wording of the question on an act that would establish universal home care for seniors and persons with disabilities was based on feedback from the public, who had until June 15 to offer comments.

 

Dunlap said the initiative proposed by the Maine People’s Alliance will read as follows:
 
 
“Do you want to create the Universal Home Care Program to provide home-based assistance to people with disabilities and senior citizens, regardless of income, funded by a new 3.8 percent tax on individuals and families with Maine wage and adjusted gross income above the amount subject to Social Security taxes, which is $128,400 in 2018?”
 
For more details, including what opposition groups are saying about the initiative, see Here's How Maine's Ballot Question on University Home Care Will Read.

June 28, 2018 in Consumer Information, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

When Complexity in the Law Is the Biggest Barrier to Home Care

Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy  in 2012. 

Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers.  Judge Jane Magnus-Stinson observed,  in ruling in favor of Ms. Vaughn, that

The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
The court traced, and criticized, the Byzantine nature of Medicaid waiver programs that fund portions of home care:
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
 
For the full opinion, with the judge admitting frustrations in finding a solution, see Vaughn v. Wernert, USDC, Southern District of Indiana, June 1, 2018.  The judge recognized that the court cannot simply order "return home" as an appropriate remedy, and instead set a "remedy hearing" for July 30 to explore all proposals, while also urging the parties to meet prior to that hearing in hopes of finding a mutually agreeable plan.  If any of our readers hear the result, please do share! Best wishes to Ms. Vaughn.
 

June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)

Buzz Aldrin Fighting Guardianship

The Washington Post reported on one of the latest famous persons to be embroiled in a guardianship proceeding. Astronaut Buzz Aldrin is fighting attempts by his kids to place him under guardianship. Buzz Aldrin is suing his children. They say they are trying to protect the legendary astronaut.explains that his kids sought to be appointed as guardian. Mr. Aldrin responded by suing them along with his manager, on the basis that "they sought to take advantage of him [and now], the family is embroiled in a rancorous dispute that has spilled from the courts into a public spectacle that both sides say they don’t want." Mr. Aldrin's suit claimed that "they assumed control of his “personal credit cards, bank accounts, trust money, space memorabilia, space artifacts, social media accounts and all elements of the Buzz Aldrin brand.” The suit accuses [one child] of a breach of fiduciary duty." The children quoted in the article offering a contrary view of matters

“Let it be clear that every one of these allegations are products of the increased confusion and memory loss that Dad has demonstrated in recent years,” Andy and Jan Aldrin said.

Their father had started associating with a few people who were “trying to drive a wedge between Dad and the family,” Andy Aldrin said. The siblings said they would not allow “opportunistic agents to grab the spotlight, break our family apart.”

They said they were also concerned about his increasingly lavish lifestyle, which grew to more than $70,000 a month at a time when he stopped accepting paid speaking engagements. His annual salary from the foundation was $36,000.

Mr. Aldrin appeared on ABC  to explain his views of the matter. His interview is available here.  A photo of Mr. Aldrin standing on the moon is available here.

 
 

June 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Wednesday, June 27, 2018

Free Webinar-Financial Exploitation & Medicare Fraud

Mark your calendars for a free webinar on Financial Exploitation and Medicare Fraud. The National Center on Law & Elder Rights will be offering this webinar on Wednesday, July 18, 2018 from 2-3 edt. Here's info about the webinar

Medicare fraud hurts individuals and is harmful to the Medicare Trust Fund. The Medicare Trust fund loses between $60 and $90 billion dollars every year to fraud, waste and abuse. Individuals can lose access to Medicare services because their identity has been misappropriated by someone else. Law and aging advocates play an important role in helping older adults prevent, detect, and report Medicare fraud and abuse.

In this free webinar, Financial Exploitation and Medicare Fraud, California’s Senior Medicare Patrol will teach advocates how to identify potential Medicare scams and report fraud and abuse to the Senior Medicare Patrol. Justice in Aging will highlight potential exploitive Medicare practices and outlines strategies to help prevent exploitation. 

To register, click here

 

 

June 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Webinars | Permalink | Comments (0)

How Far Can Courts Go in Reassigning Income to a Community Spouse When it Affects Medicaid Payments?

It is a while since I've had a chance to report on an interesting Medicaid planning case.  Perhaps that alone is a sign of the times?   

Last month in Michigan, however, an appellate court weighed in on an interesting question about the power of courts to reallocate income, from the institutionalized spouse to the community spouse, where such a decision would impact payment sources for the nursing home. In a per curiam decision, the court considered a pair of similar cases, where the state probate courts had entered protective orders that directed "all income" received by an institutionalized spouse (IS) be paid to the community spouse for maintenance purposes. The State Department of Health and Human Services objected, as clearly the state winds up paying more for the IS's care if the community spouse gets all the IS's income. 

Does the probate court have authority -- jurisdiction? -- to make such a ruling?  What criteria are relevant to the allocation of income?  In other words, is the probate court the right place to avoid inadequate safeguards against impoverishment of the community spouse?  Interestingly, the Court, at footnote 13, distinguished the two cases from past attempts to make gifts or use protective proceedings for planning purposes before an initial determination of Medicaid eligibility.  The court summarized its ultimate decision:  

For the reasons explained in this opinion, we conclude that the probate courts have the authority to enter protective orders providing support for a community spouse whose institutionalized spouse is receiving Medicaid benefits. However, we also conclude that the probate courts’ authority to enter such support orders under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq, does not include the power to enter an order preserving the community spouse’s standard of living without consideration of the institutionalized spouse’s needs and patient-pay obligations under Medicaid. Given that the orders in this case were entered without consideration of Joseph’s and Jerome’s needs and patient-pay obligations under Medicaid, we find that the probate courts abused their discretion by entering the orders at issue in this case. We therefore vacate both support orders and remand for a reconsideration of Beverly’s and Ramona’s need for support under the proper framework.

For more, read the full decision in In re Estate of Vansach, Michigan Court of Appeals, May 22, 2018.

Counsel representing the community spouse has posted his own take on the decision, describing it as a win, in a post titled BRMM Wins Significant Elder Law Case in Michigan Court of Appeals.  

No success in finding a mirror image article from the DHHS lawyers.  With the split decision, I suppose they could have written DHHS Wins Significant Elder Law Case in Michigan Court of Appeals.

June 27, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 26, 2018

More on End of Life

Two more items to add to your resources and reading on end of life in the U.S.

First: The New York Times ran an op-ed earlier in the month, Let Dying People End Their Suffering.Written by Diane Rehm, the  focus of this piece is on California's aid-in-dying law. She writes about a friend with terminal cancer who expressed relief about the law that allowed her to seek aid-in-dying.  As readers of this blog know, the law was overturned, so Ms. Rehm writes about the turmoil the decision has caused for those with terminal illnesses and their families. She writes about her husband, in Maryland, without the option of aid-in-dying, who instead opted for voluntarily refusing food and fluids.

Ms. Rehm makes a heartfelt argument in support of the aid-in-dying law, concluding her article this way

Let me be clear: I understand that many people believe that only God should determine the time of their death, and I support them 100 percent. Others want every additional minute of life that medical science can give them, and I support those people 100 percent. But the end of life is an extremely personal experience. If, when my time comes, I see only unbearable suffering ahead of me, then I want my preference to have access to medical aid in dying to be supported 100 percent, as well.

As Archbishop Desmond Tutu has written, “Regardless of what you might choose for yourself, why should you deny others the right to make this choice?”

Second:

Back in May, the president of the Hastings Center  wrote  a piece, Hastings Center President Calls for “Moral Leadership” to Improve End-of-Life Care.

The president made two lectures, "the 23rd annual Joseph N. Muschel Medical House Staff Award Lecture at Medicine Grand Rounds at Columbia University on May 16 and the Annual Wilhelm S. Albrink Lecture in Bioethics at West Virginia University on May 18... [where she] called on clinicians, hospital leaders, and bioethicists to broaden the usual ethical framework beyond “thin” notions of autonomy to a more robust relational ethics, that would build new systems, better capable of ensuring that frail older Americans and their caregivers get the support they need."

In her talk, when she turned to the topic of end of life "and population aging, she told the audiences: 'Redesigning our systems of health care delivery is one of the most important challenges of our time and will take significant moral leadership. But even that is not enough: beyond changes within care delivery settings, we also need to redesign our communities – so that housing, transportation and social supports are there for the increasing number of Americans living longer with frailty and dementia.'"

I'm sure these two pieces will not be the last on end of life care, so, stay tuned.

June 26, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Filial Claims - Does Germany Look to In-Laws for Maintenance Claims?

Recently a U.S. reader of some of our "Filial Friday" posts in the the Elder Law Prof Blog inquired about Germany's reinvigorated use of filial support laws.  He asked:

"Is an inlaw responsible for adult support in Germany? For example, if an [American] person is married to a German [living in the U.S.], the German doesn't work [in the U.S.] and has no income, will the American spouse's income be garnished to pay for the adult care of the mother in law?"

In reading an English translation of Title 3 provisions of the German Civil Code on "Obligation to Maintain," I find that only a spouse of an indigent or "lineal" relatives are identified as having an obligation to maintain "each other."  See Sections 1601 and 1608. 

However, when adult children in the U.S. receive requests from Germany authorities, they are often asked to provide detailed financial information, including identification of all marital property in the U.S.  Recent German correspondence I reviewed asked the American daughter, "Do you or your spouse/partner in a registered civil partnership hold assets?" The married daughter was then asked to identify the "type of assets, including cash, savings, capital, land or property, and the value."   This type of request for financial information seems to arise under Section 1605 of the Civil Code, which provides:

"Where the person with an obligation to maintain lives under the matrimonial property regime of community of property, his obligation to maintain towards relatives is determined as if the marital property belonged to him."

Further, Section 117 of Germany's Social Security Law provides that where the government is providing social welfare benefits, liable family members must "inform the social welfare body of their income and asset situation."   

So far, I haven't seen an American child of an indigent German parent "compelled" to pay maintenance, despite German government inquiries and letters suggesting this is possible if family members fail to cooperate voluntarily.  I suspect there are instances where the demands for financial information are frightening enough that some Americans agree to provide "some" voluntary support.  I'm always interested when Americans receive requests from foreign authorities under this new wave of filial law obligations. The cross-border fact patterns are perfect for my Conflict of Laws course.  One of these days, we'll probably see some formal test cases. 

Americans aren't the only ones surprised by the vigor with which German authorities are seeking reimbursement for state care costs from relatives.   Here's one man's dilemma from 2014, captured in a German newspaper Süddeutsche Zeitung, as translated into English for the Financial Times.  

June 26, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, International | Permalink | Comments (0)

Monday, June 25, 2018

Age Discrimination Investigation

Our friend and frequent contributor, Naomi Cahn, recently sent us an item about an age discrimination in employment investigation at Intel. Silicon Valley's quieter discrimination fight, published in Axios at the end of last month, offers this quick take "[t]he disclosure that Intel is under investigation for age discrimination highlights what many see as an unspoken truism of the tech industry: it's a young man's game...Why it matters: Over the last year, much has been made of the industry’s maleness. But there’s been less of a spotlight on its preference for youth over experience." The Axios article offers these statistics:

By the numbers:

  • Nearly 20% of those laid off by Intel in 2016 were 60 or over, according to the Oregonian.
  • 7.8% were 55-59.
  • 11.2% were under age 45.
  • 5% were under 35.

Intel isn't alone, as the article notes, other companies have been investigated.  The takeway, according to the article,

Our thought bubble: While much of the age discrimination issue centers around worker bees vs. tech leaders, Silicon Valley also has a love affair with young founders. But as these companies move to the center of our economic and social existence, they need to tap the experience of workers and managers who've built institutions and weathered storms. Otherwise, no matter how smart they are, they'll keep making rookie mistakes.

  • As for the industry's silence on the topic, it's a fair bet that many prefer to keep their head down and pass as younger rather than carry the mantle of being the voice for the older tech worker.

Side note: It's somewhat interesting that Intel finds itself in the crosshairs given that the company has been a leader among big tech firms in trying to diversify its ranks when it comes to race and gender. Intel, for its part, denies it has discriminated based on age or any other basis.

June 25, 2018 in Consumer Information, Current Affairs, Discrimination | Permalink | Comments (0)

G.W. Law Prof Cahn Addresses USSC Ruling on Statutory Insurance Revocation Following Divorce

George Washington Law Professor Naomi Cahn has written a very timely piece considering the Supreme Court's June 11 decision in Sveen v. Melin

For academics, this decision could be relevant to many courses, including estate planning, family law, property law, and contract law, and, of course, constitutional law. Did a state divorce law, potentially effectuating revocation of a former wife as the named beneficiary of her former husband's life insurance policy, conflict with the Contracts Clause of the U.S. Constitution?  The case has drawn attention in part because it offers an "early look" at analysis rendered by President Trump nominee Justice Gorsuch, in his lone dissent.   

Naomi is also interested in the dissent.  She writes in part:

Rather than critique Justice Gorsuch’s interpretation of the Contracts Clause, I want to focus on another aspect of his dissent: he twice (approvingly) cites to a brief filed by more than a dozen women’s groups supporting Kaye Melin (the majority does not mention this issue at all).

 

It is important to acknowledge that, while virtually all states provide for revocation of beneficiary provisions in wills in favor of an ex-spouse, only about half the states (and the Uniform Probate Code) have extended this revocation to nonprobate assets, such as life insurance policies. There is a policy debate among states about whether automatic revocation is a good idea, and Congress does not provide for such automatic revocation in federally regulated nonprobate assets.

 

In addition, there is little empirical evidence concerning what policyholders actually want or expect will happen upon divorce. Indeed—and here is one of the two contexts in which Gorsuch cited the women’s brief—“[a] sizeable (and maybe growing) number of people do want to keep their former spouses as beneficiaries.” The growth of collaborative divorce, for example, shows that divorce is not necessarily the messy, take-no-prisoners assumption that underlies modern divorce revocation statutes. As Justice Gorsuch noted, citing to a brief filed by the U.S. government in a 2013 case that argued a state divorce revocation statute should be preempted, there may well be legitimate reasons why a decedent did not change a beneficiary designation, ranging from wanting to support the ex-spouse’s care for joint children to feelings of connection. Justice Gorsuch cited the Women’s Law Project brief again in addressing alternatives to the state’s choice. . . . 

For Professor Cahn's full analysis, including her interesting conclusion, see Svenn v. Melin: The Retro View of Revocation on Divorce Statutes.  

June 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Friday, June 22, 2018

Where the Elders Are

CityLab recently ran a story about populations and particularly, where elders are residing. Mapping America’s Aging Population explains that "Demographers and geographers have watched as this aging cohort transformed the U.S., from young children in the 1950s and 1960s to senior citizens today. This graying of America has left a distinctive geographical fingerprint."

Want to guess where elders are living?  If you started with the sunbelt you would be somewhat correct. "Unsurprisingly, popular retirement states like Florida and Arizona have high concentrations of older Americans... What may be more of a surprise is the broad swaths of elderly running through the Midwest and the Appalachians. These regions have aged significantly, as many younger residents headed toward the coasts."  The demographic maps provide good pictorial representations of the locations where elders are living.

The article looks at births and deaths and relocation. Interestingly, "[p]eople are less likely to move as they age. In 1968, parents of the baby boomers were in their highly mobile, young adult years, but today boomers are older and more apt to stay where they are."

The Boomers seem to be clustering in certain geographic areas:

Baby boomers have contributed to this trend. Fifty years ago, this group was spread out evenly among the rest of the general population. By 1990, they had became more bicoastal and were concentrated in a small number of dynamic, growing metropolitan areas.

Between 1990 and 2000, a substantial number of boomers flocked from these metro areas to amenity-laden retirement and pre-retirement regions, like the Pacific Northwest, Florida, northern Wisconsin and Michigan, as well as some areas of the South, like the Ozark region and the Western Carolinas.

These areas have continued to grow, while baby boomers moved away in their greatest numbers from the southern Great Plains and the area along the Mississippi River Valley.

Thanks to my colleague and dear friend, Mark Bauer, for sending me the article.

 

 

June 22, 2018 in Consumer Information, Current Affairs, Housing, Other, Property Management, Retirement, Statistics | Permalink | Comments (0)

VA Posts "Annual" Comparative Ratings for Veterans Nursing Homes (but, is that enough?)

A recent press release from Department of Veterans Affairs announced the VA's  decision to release "annual" ratings for its nursing homes.  From the opening words, the language in the notice is, shall we say, interesting.

Today [June 12, 2018] the U.S. Department of Veterans Affairs (VA) extended its unprecedented 18-month record of transparency disclosures by making public for the first time its annual nursing home ratings. View the ratings here.

 

The data show that, overall, VA’s nursing home system – composed of more than 130 community living centers – compares closely with private sector nursing homes, even though the department on average cares for sicker patients in its nursing homes than do private facilities.

 

In fact, the overall star rating for VA’s nursing homes compared to the 15,487 private sector nursing homes rated by the Centers for Medicare and Medicaid Services (CMS) shows that VA has a significantly lower percentage (34.1 percent lower) of one-star, or lowest rated, facilities than the rest of the nation.

    

Of note, 60 of VA’s nursing homes improved their quality score from last year to this year (2nd Quarter FY17 to 2ndQuarter FY18).  Only one facility had a meaningful decline in that metric, and that facility was already rated with four stars.

 

Extending President Trump’s Commitment to VA Transparency, Quality Improvement

 

For years, the Obama administration had resisted making certain VA quality data public. But under President Trump’s leadership, transparency and accountability have become hallmarks of VA.... 

In addition to the press release, interested readers will want to follow USA TODAY and Boston Globe articles analyzing statistical reports from the VA, including Secret VA Nursing Home Ratings Hide Poor Quality Care From the Public (June 17, 2018); Lawmakers Demand Secrete NVA Nursing Home Data Be Released After USA TODAY, Boston Globe Report (June 19, 2018).   

On June 20, 2018, USA Today followed up its series of articles with an editorial, pointing to incomplete information released by the VA:

Veterans can now go online to see comparative data for VA hospitals and outpatient clinics and choose private alternatives if VA care is wanting. But Veterans Affairs evidently hasn't yet learned that lesson for its operation of nursing homes. Though it released limited appraisal information after reporters inquired, the agency continues to withhold underlying quality data such as infection and injury rates at its elderly care facilities.

 

This information needs to be made public, not just when reporters ask for it but for any veteran or family of a veteran considering care at a VA nursing home. Private nursing homes are required by federal law to make this information available, and so should taxpayer-financed VA facilities. 

June 22, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Veterans | Permalink | Comments (0)

Thursday, June 21, 2018

Boomerang Hospital Admissions and Medicare

Kaiser Health News recently reported on efforts by CMS to crack down on what KHN calls "boomerang" hospital admissions. Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients focuses on the situation where nursing home residents have multiple hospitalizations.

With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.

Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.

One solution implemented by CMS, the story explains, has been to penalize hospitals when the resident is readmitted, "in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records."  In the next few months, CMS will now initiate a program with incentives for nursing homes: "giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission."

Of course, this doesn't mean that a resident will never be hospitalized but hopefully this will make the process and the care better for residents.  The article looks at reasons for the frequent admission problems, noting the causes include ineffective communication between the nursing home and the treating doctors.

This issue is a common one.

Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.

Stay tuned.

June 21, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

The Rhetoric Of Anger in Advocacy

I've been thinking a lot lately about the tone and words used by individuals in advocating for change.  Part of the reason I think about that is many of our students will choose the roles of advocates for change.  

Another, perhaps more obvious impetus for this contemplation is the increasing use of demonization to characterize "others" you disagree with.  In the language of debate, such an approach is an ad hominem attack, where the argument is directed against the person rather than the position they are maintaining.   And it seems the usual adjective to add for that style is to call it a "vicious ad hominem attack."   

I understand anger.  I understand the emotion that can fuel heightened language. But, the plain fact of the matter is, that style often is not effective in achieving change in the law, especially in the courtroom. I get it, that  rationality sometimes isn't effective either.  That's enormously frustrating.  But what I tend to see as a response to vicious ad hominem attacks is for the target to either respond in kind (more shouting, more name calling) or go "underground." It causes the target to double-down on his or her own personal, now equally angry, position.  And courts do not respond well at all to such a style of advocacy.  

As I'm typing these words, I'm thinking about some of the advocacy that is being used by opponents of guardianships.  I see the occasional such comment (sometimes too long to attach to a post) on the Elder Law Prof Blog.   Again, I understand the anger of family members who perceive a loved one to be the victim of a self-dealing agent, whether that bad agent was a guardian, a trustee, someone acting under a power of attorney, or simply someone who was made an accommodation party on a joint account.  The anger is justified.  

But, when the opponents of the bad agents cast an overbroad net against all courts or all judges or, even, all guardians, using, dare I say, "trumpian" adjectives and nouns to characterize all individuals serving in such roles, it just isn't very effective.  It closes the door to change in the law.  At least, that's my 2 cents on the topic.  We need better solutions for instances where individuals did not choose their own trustworthy agents.  

I was struck by a couple of  news stories I read today by individuals who use anger to characterize disease, especially dementia.  Now, here, I think the anger and harsh language as a rhetorical tool is different, and has a different effect.  For example, a recent article described actor Don Cheadle's anger, sorrow, and disbelief following the loss of his mother.  He is described as saying:  

"She went through a real tough spell.  She had dementia and it's just an evil, mean disease.  To watch someone just deteriorate in that way, it's hard to believe."  

Here, even though obviously the disease isn't a sentient being, the characterization of it as evil, as, in essence, an enemy, seems more effective.  The desire might be for an army to rally to oppose the devastation wrought by the disease.  

Just a bit of mid-week musing.  Some of this is probably influenced by being the daughter of a judge who worked 7 days a week for 30+ years, far harder and longer than necessary for his job or any job.  Or, it could be my musing is the result of far too much caffeine as I work on summer law reform projects, and as I try to sort out what arguments are the most likely to be effective.  

June 21, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink | Comments (1)

Wednesday, June 20, 2018

Register Now-Webinar-Elder Homicides

The Elder Justice Initiative at the DOJ has announced a new webinar on July 13, 2018. Here's the information about the webinar:

On Friday, July 13, from 2:00–3:00 p.m. eastern time, the Elder Justice Initiative presents the webinar “The Forgotten Victims: Elder Homicides Part 2, A Prosecutor's Perspective." Please join us as Belle Chen of the Los Angeles County District Attorney’s Office discusses the unique challenges of investigating and prosecuting elder and dependent neglect homicides... This webinar will highlight some of the challenges and common dynamics in these cases through a comparison of two elder neglect cases that went to trial and were presented to juries. This presentation can aid law enforcement in their investigations of complex elder neglect cases and prosecutors in their review, filing, and litigation in criminal court. 

To register, click here

 

 

June 20, 2018 in Consumer Information, Crimes, Current Affairs, Programs/CLEs, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)

New Rules Governing Nursing Facility Care Trigger New Approaches to Advocacy

Eric Carlson, Nancy Stone and Lori Smetanka have joined forces to write an important new guideline for advocacy under the revisions issued by CMS in 2016 for nursing facility care, with an eye towards additional changes likely to occur under the Trump administration.   

After surveying the most important reforms, they advise:

The revised regulations contain both positives and negatives for nursing facility residents and their advocates. The positives include expanded requirements for person-centered care, care planning, and resident choice and participation in health care services. The revised regulations also strengthen the NHRA’s prohibitions against facilities requiring a third-party guarantee of payment or a waiver of legal rights, and protections for residents from improper transfer/discharge. In addition, the regulations have added requirements for a facility grievance official and procedures.

 

It is disappointing, however, that the revised regulations do not require a registered nurse around the clock or a minimum staffing standard. Even though unnecessary restraints are included in the definition of “abuse” and the requirements for drug regimen reviews and reporting of unnecessary drugs were expanded, the revised regulations compromise the focus on ending the misuse of antipsychotic medications.

 

In addition, the Trump administration has proposed a repeal of the ban on predispute arbitration agreements and delayed enforcement remedies for certain Phase 2 requirements. The administration is also considering the repeal or further modification of other revised regulations (e.g., regulations on grievance procedures, quality assurance, and ombudsman discharge notices).

The authors explain the importance of advocacy in this time of change:

Even though CMS and the states are responsible for implementing these regulations, regulation implementation, if left solely to government agencies and providers, is usually scattershot and inadequate. For the revised regulations to truly become the national standard of care, nursing facility residents and their advocates must be prepared to assert resident rights over and over again. Another unfortunate reality is that nursing facilities may be hostile or apathetic toward the revised regulations and the survey agencies can only do so much, given that federal law requires surveys only once a year. For these reasons, it is up to residents, families, and advocates to be knowledgeable about the federal law and make nursing facilities accountable when they fall short.

For the full picture, read Advocating for Nursing Facility Residents Under the Revised Federal Requirements,  published April 2018 in the NAELA Journal, and available online as a PDF.

 

June 20, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Tuesday, June 19, 2018

Interpreting a Living Will in the ER Setting

Maybe it's just me, but does it seem to you that there are a lot of articles of late about advance directives and end of life issues?  Here's a recent one published by Kaiser Health News.   That ‘Living Will’ You Signed? At The ER, It Could Be Open To Interpretation.

opens with an ER nurse saying DNR because the patient had a living will, but reading the document showed the language to be just the opposite, "'[d]o everything possible,' it read, with a check approving cardiopulmonary resuscitation."  The point is to illustrate the mistake that the existence of a living will automatically means no resuscitation. "Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said [the] medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama."

There's a new report from Pennsylvania, Empowering Patients and Agents to Help Prevent Errors with Living Wills, DNRs, and POLSTs

In 2016, acute healthcare facilities in the Commonwealth reported through the Pennsylvania Patient Safety Reporting System (PA-PSRS) nearly 100 events involving the code status or treatment level of patients. Twenty-nine patients were resuscitated against their wishes. Two patients were not treated when their wishes indicated they should have been. The remaining cases represent near misses that could have affected the patient, but were resolved before harm occurred.

The Pennsylvania Patient Safety Authority is unable to verify whether the do not resuscitate (DNR) orders or physician orders for life-sustaining treatment (POLST) were appropriate, correctly created, or verified prior to these patient safety events occurring in real time.

The Kaiser Health News article details communication missteps and offers that

The problem, Hoffman explained, is that doctors and nurses receive little, if any, training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms, either on the job or in medical or nursing school.

Communication breakdowns and a pressure-cooker environment in emergency departments, where life-or-death decisions often have to be made within minutes, also contribute to misunderstandings, other experts said.

One expert interviewed for the article suggests these missteps are more common explaining his use of hypotheticals where "he has asked medical providers how they would respond to hypothetical situations involving patients with critical and terminal illnesses."  He goes on to explain

He described a 46-year-old woman brought to the ER with a heart attack and suddenly goes into cardiac arrest. Although she’s otherwise healthy, she has a living will refusing all potentially lifesaving medical interventions. What would you do, he asked more than 700 physicians in an internet survey?

Only 43 percent of those doctors said they would intervene to save her life — a troubling figure...Since this patient didn’t have a terminal condition, her living will didn’t apply to the situation at hand and every physician should have been willing to offer aggressive treatment, he explained.

The article offers some suggestions from one expert to avoid these situations: "[m]ake sure you have ongoing discussions about your end-of-life preferences with your physician, surrogate decision-maker, if you have one, and family, especially when your health status changes...  Without these conversations, documents can be difficult to interpret."

June 19, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink | Comments (0)

Senior Savers: Where Reality TV Meets Seniors Looking to Downsize

Bryan Devore, an engaging realtor in California, recently wrote to me to report on his latest venture, a cable television program devoted to showing folks how to consider options for senior living.  After I reviewed the first promotional trailer,  I joked with Bryan about whether his target channel was HGTV, a favorite in my own family (resulting in the fact that now we know all too much about shiplap and sliding barn doors).  Bryan responded by joking that perhaps the Lifetime network was the better target.  

In any event, the concept is now "reality" and the first episode of Senior Savers TV is available.  You can catch the 30 minute episode (with surprisingly interesting commercials for those of us who track senior living marketing topics) here: 


 

June 19, 2018 in Consumer Information, Current Affairs, Film, Housing, Property Management, Retirement, Television | Permalink | Comments (0)