Elder Law Prof Blog

How Should Non-Wage Compensation of Live-In Caregivers Be Analyzed for Fairness?

Professors Adam Hofri-Winogradow (Hebrew University of Jerusalem) and Richard Kaplan (University of Illinois) have an interesting new article, addressing how different countries analyze property transfers to caregivers.   They recognize that, broadly speaking, reviewing authorities tend to treat family members differently than they treat professional caregivers when it comes to questions about undue influence or other theories that may invalidate a transfer as unfair. Further, they recognize that policies may differ for live-in caregivers versus hourly helpers.   Also, on a comparative basis, countries may differ on how a governmental unit provides employment-based public benefits for home carers, thus perhaps influencing how family members view pre- and post-death gifts to caregivers.

From the abstract:   

In this Article, we examine how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient, and claims against the recipient's estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the United States, a model funded exclusively by public money is probably impossible.

For more, read Property Transfers to Caregivers: A Comparative Analysis, published in June by the Iowa Law Review.  

Rep Payee Reviews

Recently I was reading the SSA website on Rep Payees and learned that certain rep payees have an accounting/auditing requirement.  Representative Payee Site Reviews Conducted By Protection And Advocacy System explains 

On April 13, the President signed the Strengthening Protections for Social Security Beneficiaries Act of 2018. The law directs state Protection & Advocacy (P&A) system organizations to conduct all periodic onsite reviews along with additional discretionary reviews. In addition, the P&As will conduct educational visits and conduct reviews based on allegations they receive of payee misconduct.

The P&A conducts a review, which includes:

• an interview with the individual or organizational representative payee;
• a review of the representative payee’s financial records for the requested beneficiary or sample of beneficiaries served;
• a home visit and interview for each beneficiary included in the review; and
• an interview with legal guardians and third parties, when applicable.

Financial Records Representative Payees Should Have Available for Review

When the P&A schedules the review, the reviewer will request the records needed for each beneficiary. Some common financial documents that representative payees may be asked to provide are:

• a beneficiary budget;

• a beneficiary ledger;

• individual bank statements;

• Collective account bank statements;

• receipts of income;

• account balances;

• bank reconciliation records;

• cancelled checks;

• expense documentation including receipts, bills, and rental agreements;

• how the payee keeps conserved benefits (e.g., checking, savings, etc.); and

• any other financial documents that pertain to a beneficiary’s Social Security and/or SSI benefits.

As part of the review the P&A also visits the beneficiary as well as any guardian or any "third parties." Anyone have any experience with these "audits"?

An Interesting Case About Effectiveness of Arbitration Agreements in LTC Settings

In my 1L Contracts course, I often discuss binding arbitration agreements, including those used as part of a package of admission documents in long-term care settings. I find that students tend to approach the subject from strong personal viewpoints.  Some express their assumptions that  arbitration is faster and less expensive than court-based litigation.  Others, upon hearing the possible costs of arbitration and the rights that may be waived as a result of signing these agreements without careful thought or legal advice, ask whether they are "void" as unconscionable.  We discuss the history of litigation in the nursing home realm, which has made the latter "contract law" challenge to be mostly unavailing.  

On Tuesday, I sat in on an interesting "arbitration" discussion in an upper division Business Entities course that began with a unit on the law of agency. The springboard was the Pennsylvania Superior Court case of Wisler v. Manor Care of Lancaster, decided in September 2015.   In the case history, the son had helped his father be admitted to a care facility for rehabilitation following a health crisis.  The son signed the paperwork for his father, including an Arbitration Agreement.  The son advised the facility he had a POA for his father, but the facility "did not obtain a copy of the power of attorney, nor could [the son] produce a copy at the time of his deposition."  These facts became important after the family brought a personal injury suit against the facility; the defendant sought to compel arbitration.  

The appellate court addressed this fact pattern as one of validity of an agency relationship between the son and father. The court concluded that without a written document or other evidence to establish the scope of authority granted to the agent, the alleged arbitration document signed only by the son was invalid to compel arbitration.   The court found there was inadequate evidence of express, implied, or apparent  authority for the son to waive his father's rights to a court-based trial, including any jury.  Further, based on the facts, the court found no grounds to conclude the son had "authority by estoppel." 

The court concludes that it is up to nursing homes to seek appropriate confirmation of the agent's authority.  Reliance on oral representations was at their peril.  "If a third party relies on an agent's authority, it must ascertain the scope of that authority at the time of reliance. . . . In other words, our decision should encourage parties seeking an agreement to arbitrate to ascertain the source of an agent's authority before allowing the agent to sign an arbitration agreement on the principal's behalf."   

Perhaps the most interesting part of the class was the fact that the author of the appellate opinion, Pennsylvania Superior Court Judge Victor Stabile, was the guest lecturer for the discussion.  He brought to bear not just his judicial experience but his commercial litigation experience to enliven the discussion.  My thanks to Dickinson Law Professor Samantha Prince for inviting me to sit in on the interesting class. 

Reforming Social Security - Child Caregiver Credits?

The Center for Retirement Research at Boston College has released an issue brief, #18-15, Modernizing Social Security: Caregiver Credits.  The brief opens with the statement of the problem

Women still tend to work fewer years and earn less than men, which leads to less income in retirement. One reason is that women are often still the main family caregiver. Traditionally, Social Security has recognized this role by providing spousal and widow benefits for married women. Today, however, many women are not eligible for these benefits because they never married or they divorced prior to the 10-year threshold needed to qualify. Even those who are married are less likely to receive a spousal benefit, as their worker benefit is larger. Thus, many mothers receive little to no support to offset lost earnings due to childrearing.

The 10 page brief looks at how the topic is handled in other countries and discusses two avenues for resolution in the U.S.: (1) "[i]ncrease the number of work years that are excluded from benefit calculations ... [and] (2) [p]rovide earnings credits to parents with a child under age six for up to five years." The article concludes in part

It is easy to understand the appeal of crediting Social Security records to reflect lost earnings due to caring for a child. In the past, this activity was usually compensated for by the spousal benefit, but changes in women’s work and marriage patterns have left fewer eligible for it. A credit is also more appealing than a spousal benefit if the goal is to compensate for the
costs of childrearing, independent of marital status.

Giving Caregivers (and Law Students!) an Opportunity to See Life through the Eyes of A Person with Dementia

Relias Learning developed an educational tool to promote empathy for individuals with dementia, in the form of a a video shot from the perspective of "Henry," a care facility resident. 

Originally intended to help in training professionals, in June 2018 Relias released a version to the general public free of any charges.  A second Virtual Reality version, is available for a modest price of $10.  There are lots of good points for class discussion in the free on-line version of a Day in the Life of Henry, available here.

More on Family Caregivers

On several occasions I've written about the issues of caregivers (the shortage of family caregivers, the financial impact on care giving) so i was interested in this article by Kaiser Health News,    A Late-Life Surprise: Taking Care Of Frail, Aging Parents notes the failure of adult children to plan for their roles of caregivers-a role that may last a number of years and even cause the adult child to stop working. The KHN story focuses the profile of a "typical family caregiver, "“When we think of an adult child caring for a parent, what comes to mind is a woman in her late 40s or early 50s,” said Lynn Friss Feinberg, senior strategic policy adviser for AARP’s Public Policy Institute. “But it’s now common for people 20 years older than that to be caring for a parent in their 90s or older.”  The story cites a new study from "the Center for Retirement Research at Boston College [which] is the first to document how often this happens. It found that 10 percent of adults ages 60 to 69 whose parents are alive serve as caregivers, as do 12 percent of adults age 70 and older."

The study shows that "about 17 percent of adult children care for their parents at some point in their lives, and the likelihood of doing so rises with age ... because parents who’ve reached their 80s, 90s or higher are more likely to have chronic illnesses and related disabilities and to require assistance, said Alice Zulkarnain, co-author of the study."

So consider the implications, some of which I mentioned in the above parenthetical in the opening sentence.  The article lists the physical wear and tear "on older [caregiver] bodies, which are more vulnerable and less able to recover from physical strain" the potential for psychological stressors which can exacerbate any health issues the older caregiver may have, and social isolation of caregivers.  There's also the financial toll that may come, with "hard-earned savings at risk with no possibility of replacing them by re-entering the workforce."  

The article mentions a number of caregiver resources.  The report from the Center for Retirement Research is available here.

When Family Members Disagree about Care Arrangements....

While courts are most often called upon to appoint guardians or conservators in the absence of an authorized agent, another way in which courts may be required to act is when family members disagree about the course of care under private arrangements.  High profile examples of how this can arise often involve celebrities.  The latest example seems to involve comedian Tim Conway, where his wife and daughter are reportedly at "odds over his medical treatment."  From People magazine's online site comes this sad report:  

The 84-year-old Carol Burnett Show star’s daughter Kelly is asking to be appointed conservator of her father and be in charge of his medical treatments, according to court documents obtained by PEOPLE and first reported by The Blast.

Kelly, 56, filed the documents in Los Angeles on Friday, claiming Conway’s wife Charlene is “planning to move him out of the excellent skilled nursing facility he is currently at” and place him in one that won’t give him access to “registered nurses at all times and his 24-hour caregiver and speech therapist (to help with swallowing).”

Charlene is Conway’s second wife. He was previously married to Kelly’s mother Mary Anne Dalton from 1961-78. (In addition to Kelly, they share daughter Jackie and sons Jaime, Tim Jr., Pat, Corey and Shawn.)

Kelly also states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”

Second marriages, where the families did not blend well, often seem to be a factor, especially if money becomes an issue.   My thanks to my Dickinson Law colleague Laurel Terry for sharing this item for our Blog. 

Micro-chipping Grandma?

The title is somewhat tongue in cheek (I use the phrase in my class to be provocative) but it was only a matter of time until the potential of a micro-chip for elders was becoming a reality. This firm already microchips employees. Could your ailing relative be next? in the Washington Post, explains that a firm that already microchips employees is looking to develop "a more sophisticated microchip that is powered by human body heat and includes GPS tracking capabilities and voice activation [and]... [they] acknowledge that the chips will offer a convenient way to track people — especially those suffering from Alzheimer’s and dementia."  The chip the company has in mind will do more than just track whereabouts, according to the article. It will have a medical component that will track the wearer's vitals and notify the wearer's doctor if something is amiss. These "medical microchips" have proponents as well as detractors as the article explains.

The article offers that only about half of the company's employees opted for the microchip, and there are other companies using the technology with humans. One expert thinks using microchips with humans is going to be a done-deal, but not for a few decades.  I'm all for the use of tech, but worry about privacy, informed consent and cyber security issues.  Although it requires a chip to be inserted into the body, is it any less invasive than cameras or technology monitoring devices such as those used in a medical cottage or a gps tracker in a cane or shoes? I still hold out hope for privacy....even though it may be eroding.

New Jersey Governor Signs New Law Helping CCRC Residents Get More Timely Refunds of "Refundable" Fees

Back in April, I posted here about legislation pending in New Jersey, inspired in part by litigation.   Residents of Continuing Care Retirement Communities  in New Jersey were advocating for mandatory limits on how long a CCRC could hold "refundable" entrance fees after the death or departure of a resident from a facility.  New Jersey CCRC residents are well-organized and they have earned the ear of legislators.  Final passage on an amended version of  Assembly Bills 2747/880 occurred on July 1.

On August 17, 2018, New Jersey Governor Phil Murphy signed Public Law 2018, c.98 into law.   The old New Jersey Law required CCRCs to repay refundable fees, but the refunds were not mandated until 60 days of "the unit" being resold.   Data collected by residents and disclosed during litigation revealed that some facilities were  holding refundable fees for more than a year after the vacating of the particular unit, while marketing and selling "other" units first.  In essence, the companies preferred to sell new units or other units unencumbered by a refund obligation, to maximize their income and asset picture. 

The new law creates a preference list for the 60-day refunds, a type of "first out, first repaid" system.  Key language of the new law provides:

"In the case of a continuing care agreement that provides for a refundable entrance fee, the facility shall assign the vacated unit a sequential 'refund' number among all available units with refundable entrance fees.  Any balance [due on refundable fees] shall be payable based on the sequential 'refund' number assigned to the unit. . . . "

A compromise among facility owners and residents in the drafting of the legislation permits a facility to apply to the New Jersey regulatory body for CCRCs for permission to use an alternative methodology for making refunds, but "approval shall not be granted unless the facility can demonstrate that the use of the alternative methodology is resident-focused and provides for a more equitable and timely payment of refundable fees." 

This final language appears to be more resident-friendly than an earlier proposed exception, which would have expressly recognized the possibility of conditioning refunds on the resale of "similar" units.   Resident councils will probably need to be careful to review any alternative proposals submitted by their own CCRCs.

The act takes effect in 90 days from date of enactment.   For more on the history of the legislation, see Signed: Bateman Law to Stop Retirement Communities From Taking Advantage of Seniors and Surviving Estate Holders. 

Current residents did not get a clear win, as the new rules for refunds are mandatory only for CCRC agreements entered into on or after the effective date of the new law.  Nonetheless, congratulations to CCRCs and residents in New Jersey on making changes that better respect the expectations of customers and their families about the use of funds that function, in essence,  as an interest fee loan to the CCRC during the residents' tenure in the facilities.  

A Different Approach to Dementia in the Netherlands

The New York Times reported recently on some innovations in The Netherlands, in  Take a Look at These Unusual Strategies for Fighting Dementia. It opens describing a virtual bus ride "simulation that plays out several times a day on three video screens" and moves into explaining that this virtual bus trip "is part of an unorthodox approach to dementia treatment that doctors and caregivers across the Netherlands have been pioneering: harnessing the power of relaxation, childhood memories, sensory aids, soothing music, family structure and other tools to heal, calm and nurture the residents, rather than relying on the old prescription of bed rest, medication and, in some cases, physical restraints." Another recreates a trip to the beach, both of which can spur conversations about previous trips.

The Netherlands has a preference for paying for care in the home rather than in facilities.  I've previously blogged about one facility in The Netherlands (De Hogeweyk). In The Netherlands, "facilities, which are privately run but publicly funded, are generally reserved for people in an advanced state of the disease."  One component of the Dutch approach is the physical surroundings designed to create a certain era or location. Another is creating small households of residents.

The article is accompanied by a number of great photos of involved residents. I plan to ask my students to discuss whether the Dutch model would work here in the U.S. What do you think?

Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?

A number of years ago,  a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman.  This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere.  Didn't the father have a right to be a fool in love? 

We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age. 

When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed.  For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story),  with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them.  In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos? 

When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older.  Or,  we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."

These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood.   I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.

At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.

Continue reading

Is Calling a 71-Year-Old Victim of a Violent Crime "Elderly" an Example of Ageism?

A column from the Manteca/Ripon [California] Bulletin on "The Impact of 'Elderly' & Other English Words," offers interesting perspectives on labels, especially in a time where high-profile name calling seems calculated to cause wide offense.  But what about more casual uses of labels?   

The column by Dennis Wyatt was sparked by news coverage about a vicious attack on a 71-year-old Sikh man in California's Bay Area.  Several of the coverage items referred to the victim as "elderly."  

In response to reader criticism of the label, Wyatt explains his perspective:  

Words can and do conjure up specific and different reactions and images with various people. Besides government definitions, laws and terminology that place people 65 and older under the umbrella of elder law there are other factors at play with language whether it is current trends, regional or cultural influences, or generational.

 

In the case of the vicious attack on the 71-year-old that those who knew him described him as frail and elderly, the word “elderly” confers the fact he’s not a “strapping” 71-year-old. I know of a few guys in their early 70s that the suspect in Monday’s attack would not have messed with. Not because they were simply healthier and would fight back but because they could have probably cleaned his clock.

 

The word “elderly” conveyed the correct image. The man was a vulnerable target and I’d venture to say the cowards that attacked him determined that to be the case. 

I do agree with [one reader's] observation that simply being 71 years old doesn’t make one elderly. At 62 I don’t feel old at all. In fact I can make a solid case I’m “younger” today in terms of health and what I can do physically than when I was 18.

In my elder law class, I sometimes begin the semester by asking students to give a definition of "elderly."  The results are often interesting.  

Thinking Above The Bad Apples: Elder Law Attorneys Who Have Stolen from Clients

I'm giving a big sigh as I begin to type this particular blog post.  I hate the topic of thieving lawyers, and especially those who hold themselves out as elder law professionals.  But, I also can't ignore the topic.  I keep a notebook of news articles and bar association disciplinary cases on elder abuse involving lawyers and although certainly the bad apples are a tiny fraction of the profession, my notebook is growing. 

The latest news comes from New Jersey, where a high profile lawyer -- who hosted a radio show and taught seminars on elder law -- pleaded guilty in late July in state court to stealing "millions" from clients.  Robert Novy, 66, faces sentencing on September 28, and the AG recommends 10 years in state prison.  

In some ways Novy's history mirrors other cases I've followed more closely in Pennsylvania, as it began with him placing client funds into his firm's trust accounts, accounts which are usually meant to be a temporary spot for use in future client-directed transactions.  At some point he then proceeded to transfer the funds to his own operating accounts, in direct violation of statutory and ethical rules.  Also, counterintuitively, his "mature" age and experience are something I've seen with other attorney fraud cases in Pennsylvania.  Were they always bad apples or did they just stay too long in the bin?  The histories often seem to begin with the lawyer's "promise" to invest the funds for clients, relying on long-years of practice as a sign of reliability, even though, generally speaking, lawyers probably aren't the best source of investment advice. In fact, the Pennsylvania Supreme Court adopted new rules in 2014 that placed restrictions on attorneys' involvement in "investment products." 

In another way, Novy's history is unusual.  I've found that most of the big ticket thefts by attorneys from older clients involve sole practitioners.  They seem like lone wolves, operating without traditional checks and balances.  Novy, who called his firm Robert C. Novy & Associates, had other attorneys in the firm. Sadly, it seems that Novy may not have been operating solo in his fiduciary crimes, as an "associate" attorney who had also been practicing law for many years was charged with similar crimes involving client funds.  I could not find the outcome of those charges, or whether the charges are still pending. 

In these New Jersey cases, the charges date back to 2015 and 2016. I suspect delays in bringing the cases to trial or plea may be tied to efforts to "permit" the lawyers some opportunity to repay the defrauded clients by liquidating their personal assets; ultimately, however, going forward with the criminal charges (rather than "mere" disciplinary sanctions) suggests the reimbursement opportunity was unavailing.  

Checking in with Professor Kate Mewhinney's Elder Law Clinic at Wake Forest School of Law

Over the weekend, one of my news feeds sent me a timely article on Wake Forest University's Elder Law Clinic as it prepares to begin a new academic year, offering free legal services to new clients.  I'm a long time admirer of the Professor Kate Mewhinney (who also Tweets), who began this creative enterprise more than 20 (25+?) years as a medical-legal partnership model, before that concept was in vogue.  She continues to inspire new generations of practitioners.  The Winston-Salem Journal column describes the Wake Forest clinic as "one of the most valuable" resources for area elders.    

The clinic, which is part of the university’s School of Law, helps law students get practical experience under the supervision of an attorney by providing free legal services to the community. The clinic accepts applications year-round, though services are only provided during the school year when law students are on hand.

 

Potential clients for the clinic must be at least 60 and have an income of less than $2,200 a month for a household of one, or $2,900 for a household of two.

 

According to the clinic, cases they typically handle include wills (if a person owns real estate), powers of attorney, Medicaid planning, guardianship, nursing home questions, abuse, fraud and consumer problems.

 

They do not handle criminal cases, traffic violation and accidents, medical malpractice, probate (estates), slips and falls, and divorce cases.

I encourage readers to review the materials on the Clinic's website, including its always interesting blog of "Elder Law Clinic News."  

NYT: Same Sex Couple Challenge CCRC Admissions Policy as Discriminatory

From wedding cakes to retirement communities.  The dissonance here starts from the first mention of the name of the community, "Friendship Village."  From the New York Times's Paula Span, comes news of a challenge to an admissions policy as applied to an older, same sex couple seeking to move into a "faith-based" nonprofit Continuing Care Retirement Community or CCRC (also known as Life Plan Communities) near St. Louis:  

The community seemed eager to recruit them, too, offering a lower entrance fee if they signed an agreement promptly. So they paid a $2,000 deposit on a two-bedroom unit costing $235,000. They notified their homeowners association that they’d be putting their house in Shrewsbury, Mo., on the market and canceled a vacation because they’d be moving in 90 days. Ms. Walsh contacted a realtor and began packing.

 

Then came a call from the residence director, asking Ms. Walsh the nature of her relationship with Ms. Nance, 68, a retired professor.

 

Natives of the area, they’d been partners for nearly 40 years. Before the Supreme Court legalized same-sex marriages across the country, they’d had a harborside wedding in Provincetown, Mass.  “I said, ‘We’ve been married since 2009,’” Ms. Walsh replied. “She said, ‘I’m going to need to call you back.’”

 

Last month, the women brought suit in federal court, alleging sex discrimination in violation of the federal Fair Housing Act and the Missouri Human Rights Act.

For the full article, read "A Retirement Community Turned Away These Married Women."   

 

Weighing Costs & Need for LTC Insurance

I'm teaching a "short course" on long-term care insurance for my law students this semester.  Therefore I'm collecting as much current information on policies and costs as possible to share with my students.  Along that line, WTOP-News in the D.C. area recently posted a two part discussion on "Weighing the Costs and Need for Long Term Care Insurance."

From the first part of the series:  

Based on a 2016 Department of Health and Human Services study, about half of Americans turning 65 today will require long-term care services during their lifetimes (47 percent for men and 58 percent for women) with most needing assistance for an average of two years. About 12 percent will need between two and five years of long-term care, and nearly one in seven adults will require five or more years. . . . 

 

Now let’s turn to the potential costs of long-term care services which varies by state and type of care. Genworth, a provider of long-term care insurance, released its 2017 Cost of Care Survey stating the national average annual cost of a private room in a nursing home is $97,452 which is an increase of 5.5 percent from one year ago and a five-year annual inflation increase of 3.5 percent. Interestingly, the biggest increase in long-term care costs was for a home health aide, which increased 6 percent from 2016 to 2017, to $49,162 per year for 44 hours per week.

 

Summary of Genworth’s median annual 2017 long-term care costs are below:

 

Adult Day Care (5 days/week)              $18,200
Assisted Living (one-bedroom)        $45,000
Homemaker Services (44 hours/week)  $47,934
In-Home Health Aide (44 hours/week)  $49,192
Nursing Home (semi-private room)$85,775
Nursing Home (private room)          $97,455

 

Source: Genworth 2017 Cost of Care Study

The article also has a good summary of key features of LTCI, including inflation riders, elimination periods, maximum daily benefits vs. maximum benefit period, lifetime maximums, guarantees on renewability, nonforfeiture options and shared care.

The writer, Nina Mitchell, who is a advisor for The Colony Group, says that she plans to focus on "alternative long-term care solutions, such as hybrid policies that combine life insurance with long-term care insurance" in Part 2.  

Senator Letter to CMS on SNF Staffing Ratings

Senator Ron Wyden has sent a letter to the CMS  administrator about CMS' staffing ratings of SNFs. His letter points out discrepancies between self-reported data and the newly required payroll data that leads to his concerns that the correctness of the information shared with residents and families

Senator Wyden has asked five  questions, seeking replies by August 24, 2018.

1. What are the requirements and safeguards CMS has in place to ensure SNFs provide accurate information as part of the 5-Star Quality Rating System. How are these requirements enforced?

2. Please provide an analysis of the difference in staffing levels of SNFs between the self-reported methodology and the payroll data methodology?

3. What does CMS plan to do in the instances where payroll data illustrates the self-reported staffing data was inaccurate?

4. Would CMS consider updating the current staffing quality measures to, in addition to measuring average staffing levels, take into account inappropriate fluctuations in staffing that may lead to patients receiving inadequate care?

5. Would CMS consider measuring patient and/or family satisfaction as part of the 5-Star Quality Rating System?

 

 

Michigan Appellate Decision Demonstrates Impact of Statutory Presumptions in Guardian Cases

On June 5, 2018, a Michigan Appellate Court issued an order demonstrating the tension between two concerns, respect for autonomy and a goal of  protection, that can arise when a court is asked to determine who will be appointed a guardian or conservator.   The case strikes me as a good vehicle for classroom discussion.

The appellate court concludes that the trial court abused its discretion by appointing a professional fiduciary, in lieu of the alleged incapacitated person's adult daughter, where there was a failure to make specific findings to explain why the state law''s "order of priority and preference" was not followed.   The opinion for In re Guardianship of Gerstier notes:

While the probate court's focus on [the father's] welfare is commendable, the court missed a critical step in the analysis.   When Milbocker [a private, professional guardian] resigned as [the father's] guardian and conservator, [the daughter] petitioned to  be appointed to fill those roles.  At that juncture, the probate court was required to reconsult the statutory framework before appointing another public administrator.  The court never articulated any findings regarding [the daughter's] competence and suitability to serve.  Absent those findings, the court erred by appointing [a new professional guardian].  

The history recounted by the appellate court suggests that the man's daughter, living in Texas, and the man's sisters, living in Michigan, were both seeking control over the father's estate, with the sister making allegations that the daughter's personal and financial history made her an inappropriate choice. The daughter made counter allegations about the sister's motives and behavior.   In addition, the father had signed conflicting POAs.  In 2013 and again in 2015, the father identified the daughter in two powers of attorney as his preferred agent; however, in 2016, after being diagnosed with Alzheimer's disease and after his wife died, the father  began living in Michigan with his sister, where he signed a new POA designating that sister as the agent.

Michigan law grants priority to "a person nominated as guardian in a durable power of attorney or other writing." Further, in the absence of an effectively designated individual, the statute provides an ordered list of preferences, beginning with the spouse and next with "an adult child of the legally incapacitated adult." 

The Michigan appellate remanded the case to the trial court with directions to reconsider the appointment of a new guardian and conservator and to make "specific findings of fact" regarding the daughter's "competence, suitability and willingness" to serve.   Further, the court directed that if the sister provided evidence during the remand, the court must "weight her credibility carefully in light of incorrect information she provided in her initial petition...." 

Reading between the lines of the court history here, one can see how the trial court decided to go with a professional guardian, probably seeing appointment of a "neutral" professional as the safer option where money seemed to be the main focus of the control issues. (The father seemed to be comfortable traveling between his daughter in Texas and his sisters in Michigan.)  State guardianship/conservatorship laws that have adopted lists of preferred individuals, however, require additional steps to explain why party autonomy will not be respected, or why the state's preference list will not control.  Such laws significantly alter the discretion once accorded to the court under many state's older appointment laws. Will  more careful adherence to the laws change the result in this case on remand?  For the classroom exercise, ask students what they predict will be the trial court's next ruling.  

  

Washington Post: More Reports on Misuse of Antipsychotic Drugs in "Nursing Homes"

From the Washington Post, a report by attorney Hannah Flamm, a self-described immigration attorney, on the misuse of antipsychotic drugs in nursing home from her time as a fellow at Human Rights Watch:

A year and a half ago in a Texas nursing home, I met an 84-year-old resident with dementia named Felipa Natividad. Her sister, Aurora Suarez, told me that the staff dosed Natividad with Haldol, an antipsychotic drug, to ease the burden of bathing her. “They give my sister medication to sedate her on the days of her shower: Monday, Wednesday, Friday,” Suarez said. “They give her so much she sleeps through the lunch hour and supper.” A review of Natividad’s medical chart confirmed the schedule.

 

Suarez said she had given her consent to use the drugs because she feared that the staff would not bathe her sister enough if she refused. But when Suarez saw the effect they had, she had second thoughts. She expressed them to the nursing home, but Natividad was taken off the antipsychotics only after she was placed in hospice care. She died a few months after my interview. Her family, seeing her in a reduced state and unable to communicate, wondered whether the drugs had compounded the losses associated with dementia; Suarez thought they contributed to her sister’s decline. “She gets no nourishment,” she told me not long before Natividad died.

 

The use of antipsychotic drugs as chemical restraints — for staff convenience or to “discipline” a resident — has a long history in nursing homes. . . . 

Our thanks to several readers who sent us links to this article!  For more, read Why Are Nursing Homes Drugging Dementia Patients Without Their Consent?  

As with many recent stories about use of drugs with dementia patients, I tend to caution against any simplistic answer and -- sometimes -- I plead for more research into medications that "could" work, with safer outcomes.  Recently I chatted with staff at a care center entirely devoted to non-restraint policies and behavioral health approaches to dementia care. 

Despite their experience, they had not yet found a solution for a resident who was in the throes of a particularly difficult stage of his disease, causing him to be awake, walking, for long hours, with ever growing agitation. Even with one-on-one attendants, he would not sit to eat meals. Other residents would react to his agitation, and the agitation seemed to have a magnifying effect on them, with a potential for explosive results.  It was exhaustion, not drugs, that would briefly interrupt the man's cycle, only for it to begin again when he awoke. 

In the above article, a source from the American Psychiatric Association is quoted as concluding that antipsychotic drugs offer “at best small” potential benefits (such as minimizing the risk of self-harm in people with extreme agitation), while “on the whole, there is consistent evidence that antipsychotics are associated with clinically significant adverse effects, including mortality.”

And yet, to my non-expert eyes, the unmedicated cycle of extreme agitation and overwhelming exhaustion I witnessed would also be associated with "significant adverse effects," including "mortality."   

Webinar-Sexual Abuse in Nursing Homes

Register now for a free webinar from the National Consumer Voice for Quality Long Term Care.  The webinar is scheduled for September 5, 2018 at 2 edt.  Here is some info about the webinar

Join this webinar to learn about sexual abuse in nursing homes.  Presenters will discuss a variety of topics to help you recognize the signs of sexual abuse and immediately respond to it. 

We will examine the full scope of sexual abuse in nursing homes, including: (1) its prevalence, (2) the physical and social signs of sexual abuse, (3) who is most at risk, and (4) who the perpetrators are.  In addition, you will learn the protections the federal nursing home rule provides for nursing home residents against this abuse and how to respond to the needs of victims.  Finally, we will equip you with concrete knowledge on how ombudsmen can advocate for nursing home residents who are victims of this type of abuse, including hearing from a special presenter on the ombudsman role in the Washington Alliance to End Sexual Violence in Long-Term Care. 

To register, click here