Tuesday, April 30, 2019
Apparently researchers and gamers are collaborating -- on a "game" that could be used to "identify individuals who might have early and mild symptoms of dementia that medical test aren't able to detect." The game, developed in Germany, and called Sea Hero Quest, reportedly uses virtual reality technology to have a "player" manipulate a virtual boat on a game board. Players are "given a map and shown checkpoints, then the map is taken away and players must navigate to these checkpoints in the game world without the map."
Some of the data reported strike me as, hmmm, surprising. I suspect this game might have greater validity if the players have established, previous skills in using the gaming tools, as well as interest or patience with the technology. There might also be some serious ethical questions for how the "game" is employed as a diagnostic tool. For more details, read "A Video Game Developed to Detect Alzheimer's Disease Seems to Be Working."
Monday, April 29, 2019
My dear friend and colleague, Professor Mark Bauer, a frequent reader of this blog, shared a recent story about bumps in the road for elders in the family as they gathered for a funeral. He has given me permission to share this with you.
Sometimes many of us forget when we are privileged. I was reminded of this last week. Those of us who are fully able-bodied and adept at new technology already have every advantage. Those of us with disabilities are already at a disadvantage, and the modern world rarely considers their needs.
A member of my family is an elder with devastating claustrophobia and two artificial knees. Before making any hotel reservation, she needs to speak to the hotel and find out whether there are rooms on the ground floor because she has difficulty riding an elevator. Sometimes a second floor room can work, but her knees prohibit her from long stairways, and frequently a dark, narrow, and foreboding staircase can be worse for claustrophobia than an elevator. Substantially all hotel reservations are handled by national call centers and sometimes even outsourced to third parties. They don’t have access to information about whether there are ground floor rooms, and they can rarely make a reservation for a specific floor. Systems are designed today to prevent people from calling specific hotels. Even if you can speak to the hotel, they often are prohibited from taking reservations directly.
We arrived in the Washington, DC area only to find out that the first floor of the hotel was actually on the sixth floor; the lower floors were a parking garage. A desk clerk at the hotel had told us by phone in advance that there were ground floor rooms and even noted in our reservation the need for one.
I spent the next two hours trying to find some hotel within a few miles with ground floor rooms. Even after looking up the hotel’s local number, calls fed directly into national reservations lines that were of no help at all.
I found a nearby corporate apartment complex that rented apartments on a nightly basis. It took 30 minutes, but a supervisor at the national reservations number was willing to make a series of phone calls to the local property to verify they had an apartment available on the second floor.
I called an Uber and brought the two family members over to their new lodging. While fairly close to the hotel where the other seven of us were staying, it was not walking distance for two elders. The only thing that made sense at the time was to install Uber on their phones and give them a crash course in how to use a smart phone for more than calls, texting, and a few games.
I grabbed family member #1’s phone and tried to install Uber, only to find out he had already downloaded it. But it froze up every time I tried to open the app because he had created a password, forgotten it, and then became locked out of the app. I then deleted Uber and reinstalled it, and the same problem occurred. It makes sense as a security matter to prevent reinstallation, but how many elders forget passwords and enter them incorrectly.
Since I thought myself clever, I tried to download Lyft. But family member #1 couldn’t recall his Apple ID, so I was locked out of the app store.
I turned to family member #2’s phone. I was able to successfully download Uber on to her phone and gave her a 20 minute course in how to use it, writing down the instructions and even going through several scenarios. I knew it would probably work out (and it did) or we might never see them again.
Because I am a (slightly) younger and able-bodied person, it never occurred to me that hotels centralizing reservations at call centers could be an impediment to elders and those with disabilities. And while I knew Uber was unavailable to anyone without a smart phone, or anyone who doesn’t know how to use their smart phone, I had never previously considered Uber to be an indispensable utility.
It seems to me that if we’re smart enough as a society to save all this money with call centers, and to create paradigm shifting inventions like smart phones and Uber, we should also be smart enough to figure out how not to further disenfranchise elders and persons with disabilities in the process.
In January 2018, Donald Trump issued an order to keep the detention facility at Guantanamo open, with the potential for the Pentagon to add new prisoners. Following that decision, Pentagon officials, described in some accounts as being "unusually frank," discussed the need for long-term care facilities for aging prisoners who will grow old and frail. From an article in The Military Times:
The Pentagon was investing in upgrades at the Navy base under President Barack Obama, whose push to shutter the detention center couldn’t overcome opposition in Congress. But those projects, including the $150 million barracks, were funded with the understanding that they could be used by the personnel of the Navy base that hosts the detention center. Now they are viewed as part of a broader effort to be able to operate the prison for many years to come.
“Now my mission is enduring,” said Adm. John Ring, commander of the task force that runs the jail. “So I have all sorts of structures that I have been neglecting or just getting by with that now I’ve got to replace.” . . .
Officials say Camp 7 is in need of major repairs, with cracking walls and a sinking foundation, and it is not suitable to hold men who will likely be in custody for many years to come. The new unit, which would be known as Camp 8, would have cell doors wide enough for wheelchairs and hospice beds and communal areas so elderly prisoners could help each other as they grow old.
For more, read the June 2018 article, "U.S. Military Plans for Future at Guantanamo Because of Trump."
I drafted the above language for this post on Sunday, April 28, after reading a more recent, more detailed story in another publication, Defense One, titled "Guantanamo Is Becoming A Nursing Home for its Aging Terror Suspects."
From that article we hear again from Admiral John Ring, the commander in charge of the Guantanamo Task Force:
The aging population at Gitmo poses unique challenges for Adm. John Ring, the latest in a string of officers who have led the prison on one-year deployments. Defense attorneys say many detainees suffer the ill effects of brutal interrogation tactics now considered to be torture. The United States has committed to providing the same health care to the remaining detainees that it provides to its own troops, as required by the Geneva Conventions. But the secure medical facilities built to treat the detainees — Ring calls them “guests” — can’t cope with every kind of surgery geriatric patients typically need, and weren’t built to last forever. Congress has prohibited the transfer of detainees to the continental United States, which means any treatment they receive will have to take place at a remote outpost on the tip of Cuba.
“I’m sort of caught between a rock and a hard place,” Ring said. “The Geneva Conventions’ Article III, that says that I have to give the detainees equivalent medical care that I would give to a trooper. But if a trooper got sick, I’d send him home to the United States.
So, it was with interest that I read a third new story, on Monday morning, April 29, reporting that Admiral Ring has been discharged from his post, with the briefest of explanation, "loss of confidence in his ability." See The New York Times article: Guantanamo Bay Prison Commander Has Been Fired.
Sunday, April 28, 2019
PA Supreme Court's Choice of Law Ruling Obligates New Jersey Family Members to Provide Filial Support For Disabled Adult Son In Pennsylvania
In what appears likely to be the final chapter in a long-running "reverse" filial support case in Pennsylvania, a unanimous Pennsylvania Supreme Court ruled on April 26, 2019 that Pennsylvania statutory law applies to determine the liability of older New Jersey parents on the issue of whether they must pay for the long-term care costs for their son in a private institution in Pennsylvania. New Jersey law, unlike Pennsylvania law, expressly exempts any person "55 years of age or over" from a support obligation for an adult child.
I've been following the case of Melmark v. Schutt since at least 2016, and you can review some of the history of the case here, here and here. Until this ruling, the parents had successfully argued that New Jersey's law controlled the case. From the Supreme Court's opening footnote, however, where it outlined evidence of the parent's annual income, it was apparent the Court was outraged that parents who could be characterized as wealthy could refuse to pay a nonprofit care provider. The Court ruled that there was a "true conflict" between the laws of New Jersey and Pennsylvania, and recognized that while many factors such as the domicile of the parents and the stipulated 'residency" of the son pointed to the application of New Jersey law, the most significant contact factor was the "harm" of nonpayment, occuring in Pennsylvania. The Court concluded:
"[A]lthough New Jersey's welfare laws apparently provide for Alex's support at public expense, there is no reason to suppose that New Jersey has adopted a public policy favoring imposition of the ongoing cost of care for indigent adults on an unwilling private third party [i.e., Melmark].... [T]he exemption in New Jersey's statutory support law for parents over 55 years of age cannot justifiably override Pennsylvania's governing statute -- at least for the period between April 1, 2012 to May 1, 2013 -- so that the financial burden of Alex's care falls upon Melmark."
I have long thought the case has uniquely "tough facts," and Pennsylvania has a history of using Pennsylvania's law to obligate families to cover certain costs of care for indigent family members. Further, the Court also ruled that the institution had a viable related theory of recovery under Pennsylvania common law, sounding in quantum meruit or unjust enrichment.
The opinion has potential implications for cross border claims of filial support in the more typical Pennsylvania fact pattern, where adult children are asked to pay the costs of care for an aging parent who fails to qualify for Medicaid. E.g., Health Care & Retirement Corp. of America v. Pittas. I can see the potential for out-of-state children to be subject to a claim for reimbursement, especially if they have any role in choosing a Pennsylvania facility where Medicaid is unavailable to pay, facts that might also give the Pennsylvania court personal jurisdiction over the out-of-state children.
Thursday, April 25, 2019
I hope you know by now that the SSA and Medicare Trustees have released their annual reports. The news is about what you would expect, if you follow the news on their annual reports. One might say that the SSA Trustees gave us good news this year. Social Security Combined Trust Funds Gain One Year Says Board of Trustees. Disability Fund Shows Strong Improvement—Twenty Years projects that the fund will "run out of money" after 2034, meaning we have gained a year. "Running out of money" means that starting in 2035, SSA will pay 80% of benefits, rather than 100%. For years, I've explained to students about the SSA Trust Fund and the Trustees Report. This year it dawned on me, when talking about the folks affected by the short fall, I'm part of those who will be affected. I'm no longer teaching something abstract. I know people, including myself and my colleagues, who will be in that group absent action by Congress. The SSA Trustees report is available here. With Medicare, the trustees really didn't have good news for us. Medicare Trustees Report shows Hospital Insurance Trust Fund will deplete in 7 years tells us "that the HI Trust Fund will be able to pay full benefits until 2026, the same as last year’s report." The Medicare Trustees report is available here.
I wanted to write a post about some good news and I have two good news items, both courtesy of AARP. First, on April 23, 2019, Florida's Governor and AARP announced that Florida is the nation's fourth state to be part of AARP's age-friendly state network. I bet you are asking yourself, what does it mean to be an age-friendly state? According to the article, Governor Ron DeSantis and AARP Announce Florida’s Designation as an Age-Friendly State, it means "Florida [has a] commitment to building livable communities that enrich the lives of people of all ages. Member states develop and implement plans that address any or all of the eight Age-Friendly domains: Transportation, Housing, Public Spaces, Respect and Social Inclusion, Civic Participation and Employment, Social Participation, Community and Health Services, and Communication and Information." So that's exciting news.
And second, in a demonstration of age-friendliness, Florida AARP and the City of St. Petersburg, Florida dedicated the first of its kind in the country, #AARPFitPark which is, according to AARP's CEO, Joann Jenkins who was in town for the dedication, "a nationwide network of outdoor exercise spaces designed for users of all ages and abilities. They’re free and open to the public and there will be 53 across then nation."
Shout out to AARP Florida State Director Jeff Johnson who tweets as @Name_u_know for inviting me to the ribbon cutting of this very cool park.
Wednesday, April 24, 2019
Kaiser Health News published a story that was the work of Kaiser and PBS NewsHour jointly. Lethal Plans: When Seniors Turn To Suicide In Long-Term Care. Their "six-month investigation ... finds that older Americans are quietly killing themselves in nursing homes, assisted living centers and adult care homes."... "Poor documentation makes it difficult to tell exactly how often such deaths occur. But a KHN analysis of new data from the University of Michigan suggests that hundreds of suicides by older adults each year — nearly one per day — are related to long-term care. Thousands more people may be at risk in those settings, where up to a third of residents report suicidal thoughts, research shows."
The article acknowledges that "[t]racking suicides in long-term care is difficult. No federal regulations require reporting of such deaths and most states either don’t count — or won’t divulge — how many people end their own lives in those settings." The article includes comments from those in the industry that points out the amount of regulation of facilities by CMS and the facilities' supervision of their residents. The article provides some general examples as well as specifics. The article is hard to read when you get to those examples, but this is a very important topic. The article also discusses and distinguishes rational suicide. The article concludes with a discussion of interventions.
Tuesday, April 23, 2019
Frequent blog reader and friend, Professor Naomi Cahn has published another fabulous article! The Golden Years, Gray Divorce, Pink Caretaking, and Green Money has been published in 52 Family Law Quarterly 57 and is available on SSRN now.
Here's the abstract for this article
This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs to change as well. Nonetheless, notwithstanding changing family forms and roles and economic disparities, we have not made the requisite changes to prepare for the forthcoming silver tsunami.
Thanks Professor Cahn for letting us know about this latest article (And can you do the titles for all of my articles for now on?!)
Monday, April 22, 2019
Ok, so scams.... Ugh. Here's a couple of new ones, now we are past tax season and don't have to worry about the fake-IRS calling us for a couple of days. First, using DNA to commit scams and frauds. Scammers May Be Using DNA Testing to Defraud Medicare and Steal Identities reports Bloomerberg. "Authorities in several states are warning about an alleged scam in which people visit senior-living communities and low-income neighborhoods, offering to perform DNA tests and collecting information from people in government health programs. ... The alleged DNA-testing scams appear to be a new twist on an old tactic, in which people are tricked into giving away personal information or participating in medical services they don’t need. Perpetrators of such schemes can bill the government for unneeded medical tests and procedures, or use the information they collect — such as Medicare and Medicaid identification data — to commit identity theft and fraud." I guess you can't get much more personal info than someone's DNA. Yikes!
Next, the New York Times reported that falling prey to scams may be a red flag sign of dementia. Senior's Weakness for Scams May Be Warning Sign of Dementia.
"New research suggests seniors who aren't on guard against scams also might be at risk for eventually developing Alzheimer's disease. ... Elder fraud is a huge problem, and Monday's study doesn't mean that people who fall prey to a con artist have some sort of dementia brewing. ... But scientists know that long before the memory problems of Alzheimer's become obvious, people experience more subtle changes in their thinking and judgment. Neuropsychologist Patricia Boyle of Rush University's Alzheimer's disease center wondered if one of the warning signs might be the type of judgment missteps that can leave someone susceptible to scams."
Although "[t]he study can't prove a link between low scam awareness and impending decline in thinking and memory," results point us to a need for more research.
There are already a number of prevention efforts in existence, but yet, these crimes keep occurring. One more recent innovation is referenced in the article. "[T]he rise in elder fraud has reached such a level that investment firms now are supposed to ask customers for the contact information of a "trusted person" they can alert if they suspect a case of financial exploitation. Just last week, federal agents broke up a Medicare scam that sold unneeded orthopedic braces to hundreds of thousands of seniors. And every tax season the government warns people not to fall for phone calls from IRS impostors — that agency won't call for payment."
And let's not get started on robocalls... Oh, ok since I mentioned them, the current issue of Consumer Reports newsletter focuses an article on apps designed to block robocalls. How to Protect Yourself From Robocalls shares the results of a survey of robocall blocker apps used by readers. Check them out and use one that works best for you. Have you reached the point where you no longer answer the phone if you don't recognize the number? I have.
Friday, April 19, 2019
Professor Jalila Jeffferson-Bullock has published a new article, Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders. The article appears in 79 Ohio State Law Journal 937-990 (2018) and is available on SSRN here.
The abstract to the article tells us
Sentencing reform appears resurrected. Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative. Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure. Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country. Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly. One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging. Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny. It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.
I usually stop the blog post with the abstract, but I want you to read the opening of the article, too.
I am 70 years old, and I have eight more years to spend in this prison--if I make it. None of my other siblings lived to see their 71st birthday. Lots of the young guys in here still feel like they have something to prove. They pick fights with each other, talk stuff to the guards, smuggle drug, phones, movies, and liquor in. Me, I'm over that. I read the Bible, exercise,and try to be a good example to the other guys. That's how I spend my days. I guess that's all I would do if I were out too. Except, I wouldn't have to do it alone. I think a lot about my wife, been married forty years. My kids are grown and moved all over the country. And my grandbabies, I never can see them. Not being with them, knowing that I may die in here, all alone--that's punishment on top of punishment. (citations omitted)
Read this article-a timely and important topic!
Monday, April 8, 2019
A few days ago the CDC issued a new report, Nonfatal Assaults and Homicides Among Adults Aged ≥60 Years — United States, 2002–2016.
Perhaps unsurprisingly, the CDC notes that the violence vs. older adults hasn't gotten the same attention and research as other cohorts. So, "[u]sing data ... [the] CDC analyzed rates of nonfatal assaults and homicides against older adults during 2002–2016. Across the 15-year period, the nonfatal assault rate increased 75.4% (from 77.7 to 136.3 per 100,000) among men, and from 2007 to 2016, increased 35.4% (from 43.8 to 59.3) among women. From 2010 to 2016, the homicide rate increased among men by 7.1%, and a 19.3% increase was observed from 2013 to 2016 among men aged 60–69 years." (citations omitted)
Look at that data again. "Nonfatal assaults [against older men] increased 75.4% (from 77.7 to 136.3 per 100,000) " with a 35.4% increase among women. "Growth in both the older adult population and the rates of violence against this group, especially among men, suggests an important need for violence prevention strategies " In my opinion, that is an understatement regarding the need for more research and prevention strategies.
The CDC discusses the limitations of their research and also offer that "[c]ollectively, these findings highlight the need to strengthen violence prevention among older adults. Unfortunately, few strategies have been rigorously evaluated." (citations omitted) In particular one idea caught my eye: "[i]ncorporating geriatric specialists in EDs might help link clinical care to service referrals."
This report is an important step, but we need more. The CDC report concludes "[v]iolence against older adults is an emerging and underreported public health problem. EDs might be promising settings to identify older adults at risk for violence and treat and support those already affected." (citations omitted).
Last week The Hill ran an opinion piece, Patients in VA nursing homes are suffering — Wilkie needs to take responsibility. Responding to stories about poor care, the Secretary of the VA "responded that VA’s nursing homes 'care[ ] for sicker and more complex patients in its nursing homes than do private facilities.'" Although that may be true, the article notes, that is not a justification for poor care and the reported issues "are easily preventable and are not complex problems." This follows the VA release of "a series of inspection reports detailing deficiencies in 52 out of 99 nursing home care facilities that caused “actual harm” to veterans." Those numbers should give everyone pause. The author calls for more "accountability [from the VA] by accepting responsibility for the problems outlined in them rather than making excuses and deflecting." Distinguishing between accepting responsibility and blame, the author offers that "[a] culture of responsibility is a greater asset to an organization like VA than the things we most often hear about, such as an increased budgets or legislative changes."
Friday, April 5, 2019
This isn't so much a news item for you as it is me thinking out loud about how the weather can impact the lives of elders. Living in Florida (and far enough South in Florida that frost is something we read about happening to others), absent a big weather event (think hurricane or tornado) we don't have to deal with the aftermath of significant winter weather events.
What got me thinking about this was the bomb cyclone from a few weeks ago. I was out in Colorado when it was moving through and although on the fringes of the storm, it was enough. The weathercasters were urging people to stay indoors and some folks lost power for a while. After the storm passed, the state and local DOT did amazing jobs clearing the roads, and businesses cleared their drives and sidewalks. But not every property owner seemed to be as diligent about doing this. And there is was the melt and freeze cycles of the day, slush and puddles as the temperatures rose, turning to sheets of ice at nights and in the mornings. This situation is possible in any location that gets snow or even rain.
It made me think about navigating the aftermath of weather events, especially if we are looking toward making communities more livable and more walkable. What help is available for older persons who can get out and about, but shouldn't be out and about walking on icy sidewalks (really I guess, who should?). How do municipalities get businesses and property owners to clear sidewalks and driveways? What help is available to survive the cold during a power outage?
Ready.gov has helpful info about dealing with snowstorms (as well as other types of disasters). Google elderly and snowstorm and you will find lots of wonderful stories about neighbors helping elders . Area Agencies on Aging are always a good start for info as well as Senior Centers.
Once the storm went through and we went outside, let me tell you the landscape was breathtakingly beautiful! The folks in Colorado are masterful at handling these snow events and I have no doubt that those who live there know how to navigate Mother Nature's events (just like we in Florida know how to deal with the humidity!) The mother of one of my dearest friends lives there and just shrugs it off when I ask her about navigating snow. Or maybe it is simply me, a Floridian, unable to process the concept of living in and navigating weather other than the kind we experience on a daily basis. Remember-planning ahead is critical. Just like we in Florida have our hurricane kits ready starting June 1, get a "blizzard box" or snowstorm survival kit together!
Thursday, April 4, 2019
The GAO published a new report examining the experiences of other countries with phased retirement of workers. Older Workers: Other Countries' Experiences with Phased Retirement reports on "17 countries with aging populations and national pension systems similar to the Social Security program in the United States. These countries also have arrangements that allow workers to reduce their working hours as they transition into retirement, referred to as 'phased retirement.'"
GAO's four case study countries—Canada, Germany, Sweden, and the United Kingdom (UK)—were described as employing various strategies at the national level to encourage phased retirement, and specific programs differed with respect to design specifics and sources of supplemental income for participants. Canada and the U.K. were described as having national policies that make it easier for workers to reduce their hours and receive a portion of their pension benefits from employer-sponsored pension plans while continuing to accrue pension benefits in the same plan. Experts described two national programs available to employers and workers in Germany, with one program using tax preferences. Experts also said Sweden implemented a policy in 2010 that allows partial retirement and access to partial pension benefits to encourage workers to stay in the labor force longer.
Even with unique considerations in the United States, other countries' experiences with phased retirement could inform U.S. efforts. Some employer-specific conditions, such as employers offering employee-directed retirement plans and not being covered by collective bargaining are more common in the United States, but the case study countries included examples of designs for phased retirement programs in such settings. Certain programs allow access to employer-sponsored or national pension benefits while working part-time. For example, experts said the U.K. allows workers to draw a portion of their account based pension tax-free, and one U.K. employer GAO spoke to also allows concurrent contributions to those plans. In addition, experts said that certain program design elements help determine the success of some programs. Such elements could inform the United States experience. For instance, U.S. employers told us that while offering phased retirement to specific groups of workers may be challenging because of employment discrimination laws, a union representative in Germany noted that they reached an agreement where employers may set restrictions or caps on participation, such as 3 percent of the workforce, to manage the number of workers in the program. Employers in the U.S. could explore whether using a similar approach, taking into consideration any legal concerns or other practical challenges, could help them to control the number of workers participating in phased retirement programs.
Tuesday, April 2, 2019
Following up on Katherine's important post, I was noticing a couple of news items regarding nursing home regulation I wanted to share. A couple of weeks ago Bloomberg Law ran this article, Nursing Homes Want Care Disputes Kept Out of Court to Curb Costs. The article focuses on the use of pre-dispute arbitration clauses in nursing home admission contracts. You may recall that CMS was going to ban their use but the current administration changed directions. "The White House Office of Management and Budget is reviewing a Health and Human Services regulation that would allow nursing homes that receive Medicaid and Medicare funding—which is nearly all of them—to enforce those “pre-dispute” arbitration clauses. The Trump administration proposed the change in June 2017."
It's no surprise when I tell you that there are those supporting the use of pre-dispute arbitration clauses and those that oppose them. AARP's legislative policy arm has opposed the current administration's position on their use, arguing "that the provisions of [Trump’s] proposed rule would very likely have dangerous and harmful impacts on nursing home residents, as well as their families.”
As the use of mandatory pre-dispute arbitration clauses in contracts grows, there is some push back. "Arbitration clauses are commonplace in contracts for cellphones, credit cards, gym memberships, and other services, but there’s a growing movement to limit their use. Last month, House Democrats introduced the Forced Arbitration Injustice Reversal Act, which would ban mandatory arbitration clauses in consumer, employment, and other contracts."
Congress, at least in 2017, and the current administration seem to be in favor of the use of the clauses, since in 2017 the Republican members of Congress "voted to repeal a Consumer Financial Protection Bureau rule banning mandatory arbitration clauses in financial contracts" which the President signed into law.
Admittedly, there are advantages to arbitration for certain kinds of cases. Whether they are appropriate for resolution of cases involving nursing home residents is one of those "agree to disagree" issues for many.
Then last week, the Washington Post published an opinion, The hidden victims of Trump’s deregulatory agenda: Nursing home residents looks at the impact of the changes from the administration, specifically "[t]he number of per-day fines plummeted. The ban on mandatory arbitration was blocked. [The President] even delayed the enforcement of new health and safety requirements by 18 months, much to the delight of the nursing home industry."
Regarding the drop in fines, so what does this mean? The author says this means "less accountability for nursing homes that treat their residents poorly. The Kaiser Family Foundation recently published an analysis that found that under the Trump administration, the average fine levied against nursing homes that have endangered or injured residents dropped from a high of $41,260 in 2016 to $28,405 in the first quarter of 2018. That may not look like an enormous dip, but that average likely reflects a shift back toward levying one-off fines for violations."
CMS disagrees. Although the amount of penalties may have decreased, they point out that the number of fines being issued has gone up. The author takes a contrary view, " the Kaiser analysis found that the administration has issued fewer penalties in cases in which nursing homes put residents in immediate jeopardy of harm. And the fines CMS did issue averaged 18 percent less than the ones levied at the end of the Obama administration."
For those Special Focus Facilities, one expert offers that "the Trump administration has largely pulled back its enforcement of them, issuing increasingly small fines even though the government continued to cite them for serious violations, according to [the expert's] most recent analysis of CMS data in January."
This is an important issue and one that is far from being resolved. So, stay tuned.
Monday, April 1, 2019
Kristen Lewis has published a really great article in the March 2019 issue of Estate Planning Magazine. Planning Challenges for Beneficiaries With Special Needs. To accommodate adequately the particular circumstances of beneficiaries with special needs, multiple trusts may be required provides a comprehensive discussion of 10 challenges faced by estate planners when a beneficiary has special needs.
Consider the opening of this article
Disabilities do not discriminate based on a family’s socio-economic status. Families of great wealth have children or other beneficiaries with disabilities at the same rate as families of modest means. Estate planning attorneys, and the other allied professionals who serve these families, are no longer able to take the position that “We don’t do special needs planning,” or worse yet, recommend that the child or other beneficiary with a disability simply be disinherited (which is likely grounds for malpractice). A recent study by the Centers for Disease Control and Prevention concluded that the prevalence of Autism Spectrum Disorder (ASD) has risen to one in every 68 births in the U.S. A more recent study concluded that the estimated prevalence of children in the U.S. with a “parent-reported” diagnosis of ASD is now one in 40. The 2010 U.S. Census reported that almost 20% of the U.S. civilian non-institutionalized population claimed to have a disability. With statistics like these, estate planners and allied professionals must become, and remain, educated about the tools and techniques available to help clients secure the future of beneficiaries with disabilities within the broader context of estate planning. A critical first step is recognizing, and knowing how to overcome, the most common challenges to effective special needs planning. (citations omitted)
Read this article, then save it to your library as a resource. You will be glad you did!
PS-shameless plug: Mark your calendars for Stetson Law's 2019 Special Needs Planning Institute for October 16-18, 2019. Registration opens July 1. #StetsonSNT2019