Tuesday, July 31, 2018

The New Yorker: A Son's Tale of Deception by Elder Scammers

In a recent issue of The New Yorker is staff writer David Owens' detailed account of his mother's entanglement with scammers.  It is a tale all too familiar to any of us who have represented families in trying to stop such scams (much less recover money).  At each level of law enforcement, he and his sister encounter experienced professionals who were fully familiar with such scams, but who simply weren't eager to pursue an investigation of another such case.  You can feel the sense of their hopelessness about such a mission.  

David's mother, living in Kansas, was a victim, via internet and telephone calls from a scammer who was working out of a base in California (or beyond).  While the son and daughter were able to put an end to some of the scamming behavior by putting holds on financial accounts and taking over the checkbook, they were stunned when their mother avoided this intercept by simply traveling to another branch of the bank and accessing money from the "frozen" account in order to mail it off to her buddy "Sam."  

All of this feels especially sad and familiar to me.  Not just from the experience with clients we had in our Elder Law Clinic at Dickinson Law, but from my own mother's experience with a predatory former homecare worker.  Even though we showed Mom the clear evidence of his particular con game (asking for two or more paychecks each week, calling one an advance, knowing she would not remember any such advance the next week;  his pay doubled, then tripled in the course of 6 months), and even though she accepted he had to be discharged because he couldn't or wouldn't stop the con, he still managed to get her to meet him, in her bathrobe at the crack of dawn, in the alley behind her house to hand him more cash.   It was another "advance."      

In David Owens' story, My Mother and Her Scammer, his aging mother was lonely.  So too was my mother; "helping" the conman made her feel like she was important and needed.  But in both instances, our mothers' misplaced trust is a sign of reduced executive function in the brain, with the hallmark inability to appreciate risk.   Plus, in both instances the conman knows exactly how to play his mark. 

My thanks to Karen Miller, Esq., in Florida for sending me this well-written (and frustrating) tale.

    

July 31, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases | Permalink | Comments (0)

Monday, July 30, 2018

SNF Staffing and Resident Care

Yesterday I blogged about a story in Kaiser Health News on the payroll reporting by SNFs that Medicare uses to determine staffing levels. KHN also has examined the data to see if there is a correlation between staffing and a resident's care. Mining A New Data Set To Pinpoint Critical Staffing Issues In Skilled Nursing Facilities notes that "[i]n April, Medicare began using [the payroll records, known as the payroll-based journal or PBJ] to rate staffing for more than 14,000 skilled nursing facilities (SNFs). The PBJ data gives a much better look at the how staffing relates to quality of care than the less precise — and too easy to inflate — staffing data Medicare had been using since 2008, which were based on two-week snapshots of staffing homes provided to inspectors. The data show staffing and occupancy on every day — an unprecedented degree of granularity that allows for new levels of inquiry."

The author offers

Low staffing is a root cause of many injuries in nursing homes. As I wrote in the article published in The New York Times based on the data: “When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.”

The author describes in detail the decisions that were made in crunching the data, using "two intersecting principles: to reflect residents’ lived experience as accurately as possible, and to be fair to the facilities. When in doubt, [the author] erred on the side of caution."

As an aside, the author notes the acronym for Payroll-Based Journal is PBJ!

 

July 30, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink

Staffing Ratios Impact Medicare SNF Ratings

A recent story in Kaiser Health News reports that almost 10% of SNFs have lower ratings because of staffing ratios. 1,400 Nursing Homes Get Lower Medicare Ratings Because Of Staffing Concerns explains that "Medicare has lowered its star ratings for staffing levels in 1 in 11 of the nation’s nursing homes — almost 1,400 of them — because they either had inadequate numbers of registered nurses or failed to provide payroll data that proved they had the required nursing coverage ...." This information is reported as a result of the ACA, where in the past, the SNFs just reported staffing numbers.  The results of this reporting change are interesting. "The payroll records revealed lower overall staffing levels than homes had disclosed, particularly among registered nurses. Those are the highest-trained caregivers required to be in a nursing home, and they supervise other nurses and aides. Medicare mandates that every facility have a registered nurse working at least eight hours every day."

One industry representative quoted in the article noted that there is a "workforce shortage."  There is a caveat to using the information, as the article explains. "Medicare concedes that because the payroll system is geared toward reporting hourly work, salaried staff may not always be reflected correctly, especially if they were working overtime. But Medicare had warned the nursing homes in April that the downgrades would be coming if facilities continued to show no registered nurses on duty. The agency noted it has been preparing nursing homes since 2015 for the new payroll system."

Kaiser analyzed the data and in the article notes a difference between for-profit and non-profits as far as staffing numbers.  The article also notes daily fluctuations in staffing, and especially fluctuations in staffing on weekends.

Staffing data is very useful for families in choosing a nursing home so this new data collection is definitely a step in the right direction!

July 30, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Indiana Appellate Court Compels Accident Settlement Funds Be Paid To Special Needs Trust

On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit. 

The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers.  The trial judge would allow only $1 million in settlement funds to be placed in trust.  

In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:   

The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . . 

 

Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.

 

The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back firstbefore any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A)I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . .  Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.

The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."

July 30, 2018 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 27, 2018

Cautious Optimism (and, perhaps, Controversy) Follows Results on New Alzheimer's Drug

I've learned to be skeptical about reports on new medications for Alzheimer's dementia.  The reports from drug companies come and go, often fading into obscurity.  

Nonetheless, results of a large clinical trial as reported at the Alzheimer's Association International Conference in Chicago this week seem to offer more promise.  From the New York Times' article:

The trial involved 856 patients from the United States, Europe and Japan with early symptoms of cognitive decline. They were diagnosed with either mild cognitive impairment or mild Alzheimer’s dementia, and all had significant accumulations of the amyloid protein that clumps into plaques in people with the disease, said Dr. Lynn Kramer, chief medical officer of Eisai, a Japan-based company that developed the drug, known as BAN2401, along with Biogen, based in Cambridge, Mass.

 

Many other drugs have managed to reduce amyloid levels but they did not ease memory decline or other cognitive difficulties. In the data presented Wednesday, the highest of the five doses of the new drug — an injection every two weeks of 10 milligrams per kilogram of a patient’s weight — both reduced amyloid levels and slowed cognitive decline when compared to patients who received placebo.

 

Of the 161 patients in the group taking the highest dose, 81 percent showed such significant drops in amyloid levels that they “converted from amyloid positive to amyloid negative,” Dr. Kramer said in an interview, meaning that the patients’ amyloid levels dropped from being considered high enough to correlate to dementia to a level below that dementia threshold.

The results discussed above apparently arise out of Phase II of the drug's testing.  An earlier report, in 2017, was more equivocal, as captured on the ALZforum website here.  

Further, as reported on Endpoints News, an "independent news organization reporting and analyzing the top global biotech and pharmaceutical R & D News of the day," a critical response is emerging since this week's public announcement:

But instead of cheering on evidence of success [for BAN2401], a large group of analysts last night zeroed in on a crucial change in the study that could have confounded the data presented — and now we have a brand new controversy to add to the literature of Alzheimer’s.

For more of the critique, read Eisai, Biogen Battered by Controversy over PhII Alzheimer's Study After Posting Positive Results.

July 27, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science, Statistics | Permalink | Comments (0)

Thursday, July 26, 2018

Pennsylvania Adopts Emeritus Status for Retired Attorneys to do Pro Bono Work

On May 9, 2018, the Pennsylvania Supreme Court approved Pennsylvania Rule of Disciplinary Enforcement 403, recognizing an emeritus status for attorneys who retire from the practice of law and seek to provide pro bono services to legal aid organizations. 

Emeritus programs serve as a pool of qualified volunteer attorneys to provide services to those in need. Emeritus attorneys can perform valuable roles in the community by bolstering legal aid and other nonprofit programs to help close the gap between the need for and the availability of free legal services.  

In order to transfer to emeritus status in Pennsylvania, an attorney must be on retired status. The retired attorney must complete six hours of continuing legal education within one year prior to the application date as a prerequisite to transferring to emeritus status. The emeritus applicant must verify that he or she is authorized solely to provide pro bono services, is not permitted to handle client funds, and is not permitted to ask for or receive compensation. At the time of application, the applicant must pay a registration fee of $35. 

Emeritus attorneys can renew their status on an annual basis, paying an annual fee, or can "transfer back" to retired status.  While on emeritus status, they are subject to annual continuing legal education requirements.  

Pennsylvania doesn't tend to rush to adopt "new" ideas, and thus it is relatively late among the states to approve such a program.  Emeritus programs have existed for quite some time.  For more on them, see the white paper on "Best Practices and Lessons Learned,"  authored for the ABA in 2010 by David Godfrey and Erica Wood.  See also the 2016 updated report by David Godfrey and April Faith-Slaker.  

 

July 26, 2018 in Consumer Information, Current Affairs, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Statistics | Permalink | Comments (0)

Wednesday, July 25, 2018

A CCRC Resident's Experience in Bankruptcy Court

A recent reader asked about what happened in the Sears Methodist Retirement System bankruptcy case in Texas for residents who had paid a "refundable" entry fee before the company filed for reorganization under Chapter 11 of the Bankruptcy Code.  In addition to sharing some legal documents in a recent update, I promised readers to reach out to contacts to get more of the story.  I heard from a long-time correspondent, Jennifer Young.  Here is her important story:  

I am Jennifer Young.  Prior to retirement I worked in Human Resources.  I am currently a resident of a CCRC in North Carolina.  I moved to North Carolina in 2015 after an unsatisfactory experience in a CCRC in Texas.

 

Here is what happened to me in Texas.  I was a resident of a CCRC, one of the Sears Methodist Retirement Service (SMRS) communities, operated under nonprofit tax rules. There were 5 CCRC operations in the SMRS system, along with 2 subsidized senior housing complexes, an Assisted Living facility, and the management of 3 state veterans’ homes.  Eleven communities in all.  I managed to move into my CCRC just two years before SMRS filed for protection in bankruptcy court under Chapter 11.

 

My community was a Type C, 90% refund contract. Our CCRC was brand new, with the entrance fees of those moving in pledged to debt service for the construction loan. SMRS’ decision to break ground on the newest of their CCRCs in 2009 (in the middle of a recession) should have been my first red flag, but I was too wrapped up in the process of choosing a desirable lot and influencing the construction of our future cottage in my own community to think about the long-term implications of that management decision.

 

As I learned the hard way, the unsecured status of entrance fees meant that residents were “unsecured creditors” in the bankruptcy process; hence, I was advised to apply for a seat on the court’s Unsecured Creditor Committee. I did and served on this committee from the summer of 2014 until it was dissolved in the spring of 2015. Per Bankruptcy Court procedures, these Committees routinely hire a law firm (with fees paid by the bankrupt estate). Residents were lumped in with all of the other unsecured creditors.  Meetings were conducted telephonically because committee members were quite scattered geographically. For example, one vendor of therapy services wasn’t headquartered in Texas.

 

I don’t remember whether the judge issued a formal order about the pre-petition refundable entrance fees, but I know all parties did not want residents to be financially harmed.  They were worried about the very negative impact of residents losing their entrance fees, as happened during the 2009 bankruptcy of a Pittsburgh, Pennsylvania CCRC, Covenant of South Hills. A second such outcome, especially for a large, multi-facility community, would have been devastating to the continuing care industry as a whole.

 

In the Texas bankruptcy process, the court set up an interim manager (not from SMRS) who worked closely with attorneys from all parties in reviewing the offers from potential new owners. As a member of the above-mentioned Committee, I would hear that new owners MUST be willing to accept the current Residency Agreements (contracts). So “applications” to buy were screened in that regard; however, the Committee and the open court procedures did not reveal details regarding all the letters of intent that were submitted. They may have been buried in tons of documents, but I don’t know for sure.

 

There was an announcement in the fall of 2014 that another Texas non-profit wanted the CCRCs, and all parties seemed content with this prospect. However, that fell through, as this potential new owner’s Board put the kabosh on the deal. To simplify the complexities of the process, let’s just say that for the communities that were not “picked off” during the fall months, there was an auction in January 2015. In contrast, SMRS’ Assisted Living facility was purchased without an auction and its Subsidized Housing facilities went back to HUD.

Continue reading

July 25, 2018 in Consumer Information, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, July 24, 2018

More on Caregiver Shortages

We have blogged in the past on the family caregiver shortage heading our way.  Some might even call it a crisis as the baby boomers relentlessly age on in large numbers. On Monday, one item in Kaiser Health News daily briefing offers this headline For Generations, Nation Has Relied On Family Caregivers. But Shifting Social Dynamics Could Leave A Vacuum.The Wall Street Journal examined this issue in America Is Running Out of Family Caregivers, Just When It Needs Them Most(subscription required). The article opens with a focus on one elder who has no children. Who will be her caregiver? "For generations, the nation has relied on family members to keep aging loved ones in their homes. Today, many Americans are growing older without family nearby, offering a glimpse of what the future may hold for the cohort of Americans who are approaching retirement."

The article pains a somewhat distressing picture of the future facing many older Americans, with low incomes, substantial debt (the article notes some of which may be from caring for their parents), and no family or nearby family to be caregivers. Currently nearly 95% of caregivers are family providing approximately "$500 billion worth of free care annually [yes you read that correctly--BILLION]—three times Medicaid’s professional long-term care spending—and help keep people out of costly institutions, according to a 2017 Merrill Lynch study."  That sounds wonderful, but here is where this is all about to fall apart: "the supply of these caregivers is shrinking just as the nation needs them most. Every day, 10,000 people turn 65. In 2020, there will be 56 million people 65 and older, up from 40 million in 2010" while the number of available caregivers is shrinking, for a variety of reasons.  Are there other options? Yes-private sector, but that's expensive and home health aides may be in limited supply. We already know about the limited benefits through Medicare and Medicaid. Boomers, no strangers to being part of the sandwich generation, may now find themselves in a different type of sandwich-they may be providing care for their parents and will perhaps need care for themselves or their spouses.  Families are far flung, so caregiving from afar may be a new model.  "Children do what they can from hundreds of miles away, checking references for an aide, managing bills, or arranging grocery deliveries. They often feel guilty for not being there to take a parent to the doctor and uncertain about how someone is really doing."

Technology (and there are a lot of cool options out there) may be offered as a mode of caregiving, perhaps even a substitute for an in person caregiver, but technology is not without limits. In some areas volunteers are filling in the gaps but of course, funding and sufficient volunteers can be an issue.

So what should these "elder orphans" do? "One-third of middle-age adults are heading toward their retirement years as singles. Women, in particular, are likely to stay or become single as they age....About 14% of frail older adults, or two million people, are without children and the number is expect to double by 2040, according to the AARP Public Policy Institute. “There’s no natural caregiver for this population,” says Grace Whiting, CEO of the National Alliance for Caregiving....While they can, they need to construct a network around themselves, aging experts say."

The article concludes with 5 recommendations, including local area agencies on aging, transportation, private companies, technology and remodeling a home to make it accessible. To that list I'd add, make a plan and talk to your elder law attorney about it.  This is a comprehensive article that would be a good basis for a class discussion!

 
 
 
 
 

July 24, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other | Permalink | Comments (0)

Unusual Story Involving Allegations of NH Medicare Fraud and Allegations of Bribery of University Officials

From the publication Inside Higher Ed, a somewhat amazing compilation of allegations.  The July 23 , 2018 article begins:

Philip Esformes is a Florida business executive facing numerous federal charges of Medicare fraud related to the nursing homes and assisted-living centers he has owned. The case took an unusual turn Thursday when the federal government accused Esformes of bribing a basketball coach at the University of Pennsylvania to help get Esformes's son admitted to Penn.

 

The indictment says that Esformes gave $74,000 in cash, plus additional perks such as limo services and rides in private jets, to a basketball coach who then placed Esformes's son on the list of "recruited basketball players," greatly enhancing the son's chances of being admitted. The coach is not identified by name in the indictment and was not charged with anything. Nor was Penn named. But prosecutors in court acknowledged that Penn is the university in question. The coach is Jerome Allen, who led the Penn program for six years and is now an assistant coach of the Boston Celtics.

 

Esformes is in jail, but his lawyer said he would dispute the new bribery charges. The lawyer has acknowledged that payments were made by Esformes to Allen to help Morris Esformes, the son, get better at basketball. But that answer may be complicated for Penn, given that such payments may violate National Collegiate Athletic Association rules. Morris Esformes, who played basketball in high school, did enroll at Penn and is currently a rising senior. He has never played on the basketball team there.

 

Beyond the case against Esformes, the indictment draws attention to the extreme advantage that athletes have in the admissions process -- not just at universities known for winning national championships, but at elite academic institutions that are highly competitive in admissions. . . .

For more, read Indictment Alleges Bribery in Admissions at Penn.  My thanks to colleague Laurel Terry for sending this article our way.  

 

July 24, 2018 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Monday, July 23, 2018

Taxpayer Identity Theft

Ugh, identity theft. It's just awful.  Too many people have their identities stolen and the thieves use the information to file false tax returns. Is the IRS doing enough to protect taxpayers? The GAO recently released a report analyzing the actions of the IRS and making recommendations.  Identity Theft: IRS Needs to Strengthen Taxpayer Authentication Efforts provides 11 recommendations from the GAO, revolving around identity authentication. Recommendations include policies for undertaking risk assessments through a variety of mediums, since taxpayers don't use the same communications method to contact the IRS, examine procedures and collect data. The full report is available here.  The landing page also offers highlights as well as a podcast. And here's a bonus recommendation-whatever safeguards the IRS uses for authentication, how about making the reporting process as easy as possible for the victims?  Just a thought....

July 23, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other | Permalink | Comments (0)

It's Hurricane Season-Are Nursing Homes Ready?

Hurricane season started June 1 and runs through November.  You may recall the tragedy that happened in Florida and the response from Florida requiring SNFs to have generators. So are nursing homes ready for hurricane season in Florida and elsewhere?  Bloomberg Law ran this story, Nursing Homes Cautiously Wade Into Hurricane Season.

Nursing homes are reviewing and updating their processes to comply with emergency planning regulations that took effect last November, according to the Washington-based American Health Care Association. Some outside the industry worry, though, that weaknesses still exist—and could put seniors at risk once again. They point to a lack of bite in federal oversight and to limited resources challenging change in institutional care.

One sobering note in the article provided these statistics nationwide:  CMS "found more than 1,850 incidents of nursing homes failing to have written emergency evacuation plans between 2011 and 2018, and 3,770 nursing home violations of requirements to inspect power generators weekly and test them monthly...." This data came from "a record review of CMS’s Nursing Home Compare safety deficiency data."

What about Florida? The article notes that Florida is on the right path...but.... "Nursing homes are now “generally much more prepared” for 2018’s hurricane season than they were a year ago, creating plans for emergency power and evacuation ... [and Florida's Agency for Health Care Administration] said the agency would do everything it could to “strictly” hold senior care facilities to the letter of the law, such as fines for noncompliance."  Even though the Florida SNFS are following the rules, "just 165 of the 684 providers have implemented a plan and the rest have requested extensions, according to the AHCA’s live tally July 19. Fewer assisted living facilities are in compliance at nearly 73 percent (or 2,260 providers)."

This all sounds good, but if another storm strikes, we may find this isn't enough. One expert in the article pointed out the lack of action at the federal level, offering that "the federal government hasn’t implemented any robust standards changes or safeguards, and there’s “no reason” to believe the same flaws don’t exist this time around...."

The article discusses the issues with lack of resources (isn't that an issue, regardless of hte problem), how there really isn't a one-size-fits-all solution (Oklahoma has tornadoes, but not hurricanes) and the different regulation of SNFs and ALFs.

CMS did act in 2016, unveiling "'all-hazards,' four-pronged approach for nursing home disaster preparation in 2016 that senior care facilities were subject to following the worst of last year’s storms. [CMS required] a facility and community provider risk assessment taking into consideration a provider’s regional susceptibility to different types of emergencies. Providers then had to develop protocols to be reviewed and updated annually for handling potential threats. That extended to the ability to provide care but also equipment and power failures, building or supply loss, and communication flow breaches such as cyberattacks....Nursing homes were also required to develop a communications plan in case of emergency across providers, staff, state and local public health departments, and emergency management agencies, according to the CMS rule (RIN:0938-AO91). And they have to train employees and test and update their emergency plans annually."

Let's hope that we don't have a repeat of those images from last year's storms in Texas and Florida.   Advise clients to ask a facility for a copy of their disaster plan and learn about any contracts they have signed with transportation companies to provide evacuation transportation. Also, how does the facility decide whether to evacuate or shelter in place.  Cross your fingers-We have 4 months left of hurricane season.

July 23, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, July 22, 2018

Celebrating Life with Elder Law Colleagues

On the heels of last week's back-to-back conferences of Pennsylvania Elder Law Institute and the Pennsylvania Association of Elder Law Attorneys, I attended a more somber event on Saturday. It was the memorial service for Bob Rosenberger, husband of Harrisburg-based Elder Law leader Marielle Hazen.  Bob died much too young, following a tough battle with cancer.  The service was a tribute to his life of caring for others (both through his professional life as a social worker and because he was a best friend of so many).  We were also celebrating his humor, his love of hiking, sports and music, and his devotion to his two children and Marielle. There were tears and also lots of laughter as his friends and family told stories. 

What also struck me was that the audience was filled with people from all parts of the lives of Bob and Marielle.  Near me was a client of Marielle; next to me was one of Bob's many lifelong buddies, carrying a photo of their shenanigans at an epic Halloween party one year.  And also around me were other lawyers -- elder law attorneys from near and far -- friends who were sharing their love and respect for Marielle and their admiration for her 30-year partnership with Bob. 

At the end of the service, we received red bud tree saplings as a continuing tribute to Bob's love of nature and all things beautiful.  Normally I would be worried about how best to plant this young tree, as my green thumb often fails me.  But Marielle's story allayed even that worry.  She told how Bob had lovingly nursed a new planting of one of his favorite trees for many months, calling Marielle to see a new nub of growth.  She also told how he happened to be looking out a window at the sapling when a passing deer managed to devour that particular project in one bite.   

It's all about the journey in life, not just our small successes and failures.  

July 22, 2018 | Permalink | Comments (0)

Friday, July 20, 2018

Changing the Way ALJs are Appointed?

The President signed an Executive Order on July 10, 2018. Executive Order Excepting Administrative Law Judges from the Competitive Service references the recent Supreme Court decision Lucia v. Securities and Exchange Commission.

The Executive Order contains this explanation:

Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures.  The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve.  Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some ‑‑ and perhaps all ‑‑ ALJs are “Officers of the United States” and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.

As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs.  Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.

The executive order, as noted in its title, makes "an exception to the competitive hiring rules and examinations for the position of ALJ" due to "conditions of good administration." The Executive Order amends 5 C.F.R. 6.2, 6.3(b), 6.4 and 6.8. To read more, click here.

July 20, 2018 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations | Permalink

Thursday, July 19, 2018

What is the Best Way to Measure Appropriate Use of POLST Forms?

During a session at the first day of the  21st Annual Pennsylvania Elder Law Institute, we had an interesting dialogue about how best to utilize Physician Orders of Life-Sustaining Treatment (POLST) forms.  One attorney described how clients sometimes arrive at her law firm for advice on various estate planning matters, including a blank POLST form that was given to them in the hospital.  The client asks, in essence,"what should I do with this?"  One attorney said she walks through the form with clients, but always emphasizes that the most important part of the process is the conversation with the client's physician about her choices that should be happening before completing the document.  

Along that line, there is a timely post on the Health Affairs Blog today, with the headline "Counting POLST Form Completion Can Hinder Quality."   The authors, two physicians in Oregon, describe an incident in which a patient reported feeling pressured at a hospital to complete a POLST form, and they raise the potential for the pressure being a side effect of that patient's health plan keeping track of frequency of completion of POLSTs or other advance directives for all patients 65 or older, marking a high rate of completion as success.  They observe:

Many stakeholders have been concerned about how best to measure the quality of advance care planning and use of the POLST form. Some health plans and payers measure the frequency of POLST form completion without a clearly delineated eligible denominator population. Use of such a metric erodes the quality of the POLST program as the following case illustrates. . . . 

 

 When health care professionals encourage patients who are “too healthy” to complete a POLST form (instead of an advance directive), even when orders are for “CPR/Full Treatment,” they may cause harm. If the patient later loses decision-making capacity and clinically deteriorates to a condition in which he or she would have desired a comfort-oriented approach, the presence of the inappropriate POLST may increase the decision-making burden on the family. Another concern is that some healthy patients have been denied life insurance because their medical record inappropriately includes a POLST form; the company incorrectly believing the patient has a limited life expectancy.

The authors argue persuasively that:

Accordingly, we do not believe that POLST forms should be mandated or counted as a quality measure. Instead, POLST quality measures should count conversations about patients’ goals for care as they near the end of their lives.

I recommend the full article, linked above, including review of their "seven imperatives to preserve POLST quality." 

July 19, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Weblogs | Permalink | Comments (0)

Wednesday, July 18, 2018

Looking for a Grant to Support Law and Aging Research? Borchard Foundation Timeline

Research Programs Coordinator Catheryn Koss at the Borchard Foundation Center on Law and Aging sent information about research grants available from her foundation:  

Legal, health sciences, social sciences, and gerontology scholars and professionals are invited to submit research proposals to The Borchard Foundation Center on Law & Aging. The objectives of the Academic Research Grants Program are to further research and scholarship about new or improved public policies, laws, and/or programs that will enhance the quality of life for the elderly, including those who are poor or otherwise isolated by lack of education, language, culture, disability, or other barriers.

 

Up to four grants of a maximum of $20,000 each will be awarded. The Center expects grantees to meet the objectives of the grant program through individual or collaborative research projects that analyze and recommend changes in one or more important existing public policies, laws, and/or programs relating to the elderly; or, anticipate the need for and recommend new public policies, laws, and/or programs for the elderly necessitated by changes in the number and demographics of the country’s and the world’s elderly populations, by advances in science and technology, by changes in the health care system, or by other developments. It is expected that the research product will be publishable in a first-rate journal.

 

A detailed Request For Proposals is attached to this email and can be accessed on the Center’s website, www.borchardcla.org. The on-line application form will be available after September 15, 2018. Applications should be submitted no later than October 15, 2018. Selections will be made on or about December 15, 2018. For more information, contact Catheryn Koss, ck@borchardcenter.org.

July 18, 2018 in Current Affairs, Grant Deadlines/Awards | Permalink | Comments (0)

Tuesday, July 17, 2018

Unlicensed Long-Term Care Facilities: The Biggest Risk of All?

McKnight's Senior Living Newsletter editor Lois Bowers wrote an article that alerted me to the June 2018 publication of a new study of unlicensed residential care facilities.  From the abstract:

Residential care facilities operating without a state license are known to house vulnerable adults. Such unlicensed care homes (UCHs) commonly operate illegally, making them difficult to investigate. We conducted an exploratory, multimethod qualitative study of UCHs, including 17 subject matter expert interviews and site visits to three states, including a total of 30 stakeholder interviews, to understand UCH operations, services provided, and residents served. Findings indicate that various vulnerable groups reside in UCHs; some UCHs offer unsafe living environments; and some residents are reportedly abused, neglected, and financially exploited. Regulations, policies, and practices that might influence UCH prevalence are discussed.

The study included visiting unlicensed facilities in Georgia, North Carolina and Pennsylvania.  

For the full report see Unlicensed Care Homes in the United States: A Clandestine Sector of Long-Term Care, by Michael Lepore, Angela M. Greene, Kristie Porter, Linda Lux, Emily Vreeland, and Catherine Hawes, published in the Journal of Aging and Social Policy.

 

July 17, 2018 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Reading Statistics in Senior Housing Trends

A recent newsletter article written for investors in senior housing (mostly REITs) captures a curious U.S. dynamic.  The population of older persons is rising; occupancy in senior housing is mostly down; rental rates in senior housing are going up.  Push, pull, push.  And despite a clear 12-month downward trend in occupancy rates, another push, as new construction in senior housing is still robust.  The Seeking Alpha article (fully available behind a registration firewall) summarizes:

In 2017, 45,000 new units of supply were delivered into the [senior home] market. To put this in perspective, approximately 140,000 people turned 83 in 2017, which is close to the average age in senior homes.  Currently about 10% in this age group reside in senior homes.  So, with 140,000 people turning 83, and additional demand was created for about 14,000 home units.  You can hence see where a 45,000 unit supply can create a decrease in occupancy.  

After analyzing returns in three specific REITs, the newsletter make a broader prediction that is relevant beyond the context of investment advice: 

There might be light at the end of the tunnel.  The same inflationary forces that are making life difficult for senior home operators are beginning to bite the senior home construction companies.  From labor shortages to rising lumber prices, they are not facing a different cost curve than they did a few years back.  Their ability to pass some of this is currently limited as purchasers of said properties are struggling to pass on higher rents to operators.  If this actually succeeds in slowing down the supply, senior housing could become a great investment concept once again.  

My own reaction to this type of an article (and I see a lot of articles that attempt to explain drops in senior occupancy) is that no one has successfully integrated the impact of state and federal government policies on funding (limited though that funding may be) for home care, nor the strength of the "age in place" preference of future seniors.  

July 17, 2018 in Consumer Information, Current Affairs, Housing, Property Management | Permalink | Comments (0)

Monday, July 16, 2018

The Future For The Aging Demographic?

The National Academies Press has released Future Directions for the Demography of Aging.This volume contains the proceedings of a workshop and the overview explains

Almost 25 years have passed since the Demography of Aging (1994) was published by the National Research Council. Future Directions for the Demography of Aging is, in many ways, the successor to that original volume. The Division of Behavioral and Social Research at the National Institute on Aging (NIA) asked the National Academies of Sciences, Engineering, and Medicine to produce an authoritative guide to new directions in demography of aging. The papers published in this report were originally presented and discussed at a public workshop held in Washington, D.C., August 17-18, 2017.

The workshop discussion made evident that major new advances had been made in the last two decades, but also that new trends and research directions have emerged that call for innovative conceptual, design, and measurement approaches. The report reviews these recent trends and also discusses future directions for research on a range of topics that are central to current research in the demography of aging. Looking back over the past two decades of demography of aging research shows remarkable advances in our understanding of the health and well-being of the older population. Equally exciting is that this report sets the stage for the next two decades of innovative research–a period of rapid growth in the older American population.

Part 1 looks at trends in health and health disparities, Part 2 examines the implications of social and environmental factors, Part 3 covers families and intergenerational issues, Part 4 covers employment and retirement, Part 5 discusses cognitive issues and disability, Part 6 reviews global aging and Part 7 offers new approaches. You can purchase the softcover book here, download a free pdf of the book by clicking here or read the book online.

 

July 16, 2018 in Books, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, International, Retirement, Science, Statistics | Permalink | Comments (0)

PA Elder Law Institute Session on CCRCs and LPCs Will Discuss Pending Legislation and Indicators on Financial Performance

As I mentioned earlier, Pennsylvania's annual Elder Law Institute is July 19 and 20 in Harrisburg.  On the morning of the first day, I'm on a panel examining new issues in Continuing Care Retirement Communities (and Life Plan Communities), along with Linda Anderson, an elder law attorney, Kimber Latsha, who frequently represents health care and senior living providers including CCRCs, and  Dr. David Sarcone, a Dickinson College business professor with background in accounting and health care management.  

I'm especially looking forward to the discussion of Pennsylvania 2018 House Bill 2291, introduced in April of this year, but already moving from one committee, to its first of three considerations on the floor, to the Rules Committee, with amendments.  In other words, this bill seems to have "legs."  The sponsors of the bill are calling it an "Independent Senior Living Facility Privacy Act."  As with most catchy titles for pending legislation, the details are a bit more complicated.  In this instance the bill's lead sponsor is from a county where a single CCRC was investigated by the State Department of Human Services following a complaint that "staffing levels" were inadequate, leaving certain residents allegedly at risk.  The Department of Human Services issued an adverse order in May 2017 related to certain aspects at the facility and apparently that order is the subject of administrative appeals.  

The provider contests the order, and in written testimony submitted to the Pennsylvania House Committee on Aging and Older Adults Services, the CEO explained his company's position that the investigators were abusing their authority by entering independent living (IL) units, questioning IL residents, and thus failed to respect the individual autonomy of residents not actually living in "personal care" facilities, facilities that would be subject to HS authority:

"We feel that DHS is inappropriately applying the term 'premises' [from the personal care regulations] as the grounds and building on the same grounds, used for providing personal care services.  Each senior apartment is a 'separate individual leasehold,' where an inhabitant, the lessee of the apartment leases an apartment and is afforded the enjoyment and freedom to engage family and third party services."

At the core of this issue is a question about expectations of the public and the residents about care in "independent living" units of a licensed "continuing care community." (Pennsylvania has at least one pending wrongful death suit involving an entirely different CCRC, where one issue is whether the CCRC's alleged awareness of an IL resident's worsening dementia was ignored.  She allegedly died of complications of exposure after wandering and being locked out of her IL apartment complex on a cold night.) 

The proposed legislation would exclude "independent senior living facilities" (including public housing outside of the CCRC context) from future state Human Services investigations, including investigations by the Long-Term Care Ombudsman. 

I expect we will also be talking about financial performance numbers of both for-profit and nonprofit CCRCs -- especially as some of the numbers suggest that some operations both sides of the industry "profit" line may be struggling to "live within their means."  

In other words, there will be some especially "hot" topics for discussion.  

July 16, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Sunday, July 15, 2018

Another Look at What Can Happen to Refundable Fees In Troubled CCRCs

Over the weekend, a reader asked about the ultimate outcome of a Chapter 11 Bankruptcy reorganization, involving Sears Methodist Retirement System's CCRC properties in Texas, that we reported on back in 2014.  The specific question was "what happened to the refundable entrance fees?"

The bankruptcy court approved escrow and repayment terms of refundable fees for "certain" residents as part of a proposed reorganization plan, with the purchaser(s) of one or all of the 8 involved CCRCs having the option of "assuming" or reaffirming resident agreements; but I need to research more to find out the ultimate outcome, once the dust settled.   I've reached out to a few folks to see if there was a final accounting. 

In picking up the research on the Sears Methodist case, that reminded me I had not reported in this blog on another CCRC bankruptcy court proceeding, filed as a reorganization under Chapter 11 in late 2015 involving what was then known as Westchester Meadows CCRC in New York.

The August 23, 2016 opinion for In re HHH Choices Health Plan, LLC  is interesting, thoughtful, and remarkably accessible for nonlawyers.  The issues addressed carefully include:

  • Where the debtor in the Chapter 11 proceeding is a nonprofit organization, what rules apply for possible for-profit and nonprofit bidders?   For example, could state law governing and limiting transfers of assets of a nonprofit organization apply?  The Court concludes that although a new operator would need to comply with state laws (such as the Department of Health's licensing rules), the Bankruptcy Code controls bidding and sale of a bankrupt debtor's assets.
  • What standards apply if one bidder, for a lower price, would continue operations as a nonprofit, while the other bidder, for a higher price (and thus more attractive to unsecured creditors), would convert to for-profit operations?  Here, the Court observes that New York state law makes it "clear that price alone is not determinative, and that fulfilling the corporate mission can be decisive if creditors are all being paid in full."   However, that rule was "clear" only if all the debtor's creditors would be fully paid, which would not be the outcome here.  After careful consideration of case precedent, the Court concludes it can confirm a lower-priced sale of the assets, where the buyer satisfies certain standards and is better aligned with the charitable mission of the operation, including in this instance protection of the interests older residents.

The Court's concludes:  

Continue reading

July 15, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)