Elder Law Prof Blog

SNF, ALF & Backup generators in Florida

So here in Florida it's pretty hot (and believe me when I say we in Florida are used to it being hot, but it's hotter). Ok, ok, just like most of the country-it's hot. Frequent readers of this blog know the stories about the Florida law requiring SNFs and ALFs to have back-up generators after Hurricane Irma. Guess what? Not all of those that are required to do so, have done so, according to a recent story. Hundreds of Tampa Bay area nursing homes, assisted living facilities still without backup power gives us some quick stats on the situation:

[M]ore than 1,000 elder care facilities across Florida still don’t have permanent generators in place to keep residents cool during power outages... [and] review of records from Florida’s Agency for Health Care Administration uncovered:

• In the Tampa Bay area, 125 nursing homes and 160 assisted living facilities don't have approved, permanent generators in place.

• A new state law fines facilities as much as $1,000 per day for failure to install permanent generators, but records show facilities without generators rarely paid fines.

• Many of these facilities avoided fines by receiving state-approved extensions — blaming installation delays or financial hardships.

The article discusses allowable extensions and looks at the number of facilities in Florida that have... and have not... complied.  The story includes a super-cool interactive map that allows you to click on a facility and get info about it in a pop-up box. Hurricane season started June 1 and runs through November. Here in the Tampa Bay area, it seems the tropics heat up for us around Labor Day (based on my unscientific observation of living here for decades) so let's hope we get through yet another hurricane season unscathed. But, let's also remember the folks in the Florida panhandle who got hit last year and still haven't recovered.

Medicare Plan Finders Confuse or Help?

Have you ever used the Medicare Plan Finder?  The GAO released a report a few days ago about it. Medicare Plan Finder: Usability Problems and Incomplete Information Create Challenges for Beneficiaries Comparing Coverage Options explains that the website isn't too user-friendly, with a redesign coming soon.

Medicare beneficiaries have many decisions to make when selecting their health and prescription drug coverage. Their choices affect their out-of-pocket costs and which providers they can see. The Medicare Plan Finder website is a primary source for comparing options.

Many officials who assist beneficiaries in selecting coverage—about three-quarters of those we surveyed—told us beneficiaries struggle with the website. They and others said it is difficult to navigate, contains complex terms, and lacks information needed to compare coverage options.

Medicare’s administrator plans to launch a redesigned website in August.

Here are the highlights from the GAO report:

The Medicare Plan Finder (MPF) website—a primary resource for comparing Medicare coverage options—is difficult for beneficiaries to use and provides incomplete information, according to stakeholders and research studies. These sources and directors of State Health Insurance Assistance Programs (SHIP) GAO surveyed—who assist beneficiaries with their Medicare coverage choices—reported that beneficiaries struggle with using MPF because it can be difficult to find information on the website and the information can be hard to understand. For example, MPF

requires navigation through multiple pages before displaying plan details,

lacks prominent instructions to help beneficiaries find information, and

contains complex terms that make it difficult for beneficiaries to understand information.

In response to GAO's survey, 73 percent of SHIP directors reported that beneficiaries experience difficulty finding information in MPF, while 18 percent reported that SHIP counselors experience difficulty.

Further, the results include "incomplete estimates of costs under original Medicare, making it difficult to compare original Medicare and Medicare Advantage (MA), the program's private heath plan alternative."  Further, Medigap plan info isn't included in the results, with 75% "of the SHIP directors surveyed [reporting] that the lack of Medigap information in MPF limits the ability of beneficiaries to compare original Medicare to MA."

This is worrisome, given the emphasis on using the Medicare website for beneficiaries.  So it will be important to examine the redesigned website to make sure it is more user-friendly, and contains complete and accurate info.

The full report is available here. Stay tuned.

 

 

CMS Regs on Pre-Dispute Arbitration Clauses in SNF Contracts

CMS issued their final rule on the use of pre-dispute arbitration clauses in nursing home contracts, CMS Rules Put Patients First Updating Requirements for Arbitration Agreements and New Regulations That Put Patients Over Paperwork.

The rule, published in 84 Fed. Reg. 34718 on July 16, 2019, amends 42 C.F.R. 483.70(n):

483.70 Administration. * * * * * (n) Binding arbitration agreements. If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section. (1) The facility must not require any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility and must explicitly inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care at, the facility. (2) The facility must ensure that: (i) The agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands; (ii) The resident or his or her representative acknowledges that he or she understands the agreement;(iii) The agreement provides for the selection of a neutral arbitrator agreed upon by both parties; and (iv) The agreement provides for the selection of a venue that is convenient to both parties. (3) The agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it. (4) The agreement must explicitly state that neither the resident nor his or her representative is required to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility. (5) The agreement may not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with § 483.10(k). (6) When the facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years after the resolution of that dispute on and be available for inspection upon request by CMS or its designee. * * *

and is effective September 16, 2019.  The ABA Commission on Law & Aging published an article about the changes: Our New Nursing Home Arbitration Mandate: Educate, Educate, Educate

The recent rule by the Centers for Medicare and Medicaid Advocacy (CMS) permitting nursing homes to enter into pre-dispute, binding agreements with residents or their representatives was deeply disappointing to resident advocacy groups, including the ABA and its Commission on Law and Aging, which advocated strongly for a full ban on nursing home arbitration agreements.

Like many groups, we do not believe that the time of admission to a nursing home is appropriate for informed decision-making about such agreements. Nursing home admission is usually a time of crisis for individuals and their families; the resident is in an impaired condition, the choice of nursing homes may be severely limited, and the resident and family have no idea of the kind of dispute that might be bound by an arbitration clause in the future. There are advantages and disadvantages to arbitration, but it is only after a dispute arises that those pros and cons can be fully weighed, and an informed and voluntary decision can be made.

The author of the article, Charles Sabatino, executive director of the Commission, describes the role of elder law attorneys as "educate residents, their families, and the public more emphatically about these agreements and advise them not to sign these at admission or at any time before a dispute arises."  He notes the good part of the change in the rule: "its mandate that arbitration agreements must not be used as a condition of admission to, or as a requirement for, a resident to continue to receive care at the facility. Moreover, the facility must explicitly inform residents or their representatives of the right to not sign the agreement as a condition of admission, or as a requirement, to continue to receive care at the facility. And the arbitration agreement itself must expressly state the same."

What is important about the new rule? Several things, according to Mr. Sabatino, including the ban on agreeing to arbitration as a condition of admission, a 30 day right of rescission, the requirement that the facility explain the contract in a way that is understandable to the resident or representative, and that the contract can't "contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman."

So, stay tuned.... let's see how this works.

Brief Report from Pennsylvania's 2019 Elder Law Institute

The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19.  One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law.  This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices.  She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships.  That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships.  As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court.  I'll write more about these issues and my project soon.

I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania.  Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania.  In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at  Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities.  The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times. 

Points of strongest interaction included issues surrounding an individual or couple's assets.  CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents.  Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission.  One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from  the administrators of the CCRC.  A similar question arose in connection with "refundable" entrance fees.   In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years.  We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods.  I can see another article in my future on these topics.  

Bereavement, Caregiving, and Immigration

I've written about this combination of topics before.  I can't quite believe I'm doing so again.  

My sister and I lost our last parent on Friday.  As with our father, who died in 2017, our mother's final months were complicated by dementia.  Thankfully her death was gentle -- she just sort of wound down at age 93 (and 9 months -- isn't it amusing how we start counting the months again, as people tend to do when someone is nearing 5 and a half years of age).  

Both of our parents had full and fulfilling lives, or as one of our friends commented, "your mother used the full runway."  The care team at an assisted living community that specializes in dementia care came to know both of our parents well, and our bereavement was matched by the tears of many of the individual caregivers, each of whom had their own memory or story to share.  As several of them noted, in her last days Mom seemed determined to "find" Dad.  And, of course, we like to think she did find him.

But one additional complication was that as our mother reached her last hours, one caregiver who has worked for our family for several years, and that caregiver's mother, who has worked her way from CNA to head of a care team, were both coping with their own worries and grief.  Both of them are U.S. citizens, but as is often true in the Southwest, a family member, a husband, is not documented.  Recently he was picked up by ICE.  No one knows quite where he is yet, but the family members know they are likely to face hard choices once he is deported.  The family members must decide how and where they will live.  My parents' care team -- and by extension the community of residents at the assisted living center -- could lose two more skilled and devoted caregivers.  The fabric of aging care grows ever more fragile. 

Applications for Fellows at the Global Brain Health Institute

The Global Brain Health Institute is taking applications for those who are interested in becoming an Atlantic Fellow for Equity in Brain Health at the GBHI.

The Atlantic Fellows for Equity in Brain Health program at GBHI is an opportunity to elevate ...r dedication and contributions to brain health. Applicants should demonstrate a commitment to brain health and health care policy, as well as an ability to implement effective interventions in their home community and to become a regional leader in brain health.

GBHI welcomes applications from people living anywhere in the world and working in a variety of professions. Fellows are typically early and mid-career. At least one-half of fellows will come from outside the US and Ireland, with an initial emphasis on Latin America and the Mediterranean.

Thanks to Sarah Hooper, Executive Director & Adjunct Professor of Law, UCSF/UC Hastings Consortium on Law, Science & Health Policy, Policy Director | Medical-Legal Partnership for Seniors, Senior Atlantic Fellow for Health Equity | Atlantic Institute for sending me the announcement.

Too Old To Commit Another Murder?

The Washington Post ran a story with this eye-catching headline, He was deemed too old to be dangerous. Now, at 77, he’s been convicted of another murder.

When we teach elder law, oftentimes the focus is on the elder as a victim, but we do know that an elder can also be a perpetrator. In this case, the perpetrator, who

When he came before a judge in Portland, Maine, in 2010, he was in his late 60s, and had spent roughly a third of his life in prison. After doing time for killing his wife, he had assaulted another woman and gone back to jail, only to get out and attack a third woman. Flick’s violent tendencies didn’t seem likely to go away with age, both the prosecutor and his probation officer warned. But the judge chose to sentence him to just shy of four years in prison, noting that by the time he was released in 2014, he would be 72 or 73.

Here's the crux of the matter--the quote from the judge who sentenced him: "[a]t some point Mr. Flick is going to age out of his capacity to engage in this conduct... , and incarcerating him beyond the time that he ages out doesn’t seem to me to make good sense.”  The article notes that statistics support the judge's perspective on this, but those statistics didn't predict the outcome here:

Eight years after that hearing, [he] struck again, fatally stabbing a woman outside a laundromat ... as her 11-year-old twin sons watched. Now 77, he was convicted of murder ... and, this time, it looks likely that he’ll spend the rest of his life in prison. The charges carry a minimum 25-year sentence, and prosecutors plan to request that he be placed behind bars for life.

So to answer the question posed in the title of this post, No, he wasn't too old to commit another murder.

Uniform Law Commissioners Approve New Act on Electronic Wills

The Uniform Law Commission recently concluded its annual meeting where the commissioners approved 5 new acts, including one on electronic wills.  Here is a summary

The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect.  Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form.  Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format.  But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states.  Under the new Electronic Wills Act, the testator's electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file.  States will have the option to include language that allows remote witnessing.  The act will also address recognition of electronic wills executed under the law of another state.  For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.

To read the act as approved, click here. The committee's issues memo is available here.

Red Flags That Might Signal Dementia

The Washington Post recently ran an important article, ‘Well, that was a weird moment’ and other signs of dementia family members should watch for. With "[a]bout 5.8 million people in the United States are living with Alzheimer’s and dementia, said Heather Snyder, senior director for medical and scientific operations for the Alzheimer’s Association. The number is expected to rise to 14 million by 2050. Approximately 16 million people are caregivers." So it is important to help caregivers understand what might be normal aging and what might be a red flag.

So what should family members look for? What is attributable to normal aging as opposed to cognitive decline associated with dementia?

It is common to misplace keys or eyeglasses or walk into a room with a task in mind and forget what that is. Those are often attributable to multitasking or stress and are considered part of normal aging.

...

Here are some things to look for:

• Notes with reminders about simple tasks.

• When neighbors or friends share concern.

• Bills not paid or overpaid.

Physical appearance — someone who was always put together suddenly wears wrinkled or dirty clothing.

• Weight changes.

• Driving issues: fender benders, parking in the wrong spot.

• Any behavior that is out of the ordinary.

• Picking up an object and using it inappropriately.

• Saying things that are inappropriate — “no filter.”

• Changes in speech, personality.

One expert describes what we are looking for like this: "take notice of what she calls “well, that was a weird moment.” For instance,[the expert] was assessing a woman and did not see any deficits — until the woman asked if she could make a phone call and picked up the television remote." The article stresses the importance of planning and being proactive. Read it, so next time you forget where you left your keys, you won't worry as much.

Mark your Calendar: Webinar on Spending Patterns of Older Adults

The Employee Benefits Research Institute (EBRI) has announced a webinar on July 24, 2019 at 2:00 p.m. edt.  on Spending Patterns of Older Households and Their Financial Planning Implications.

Here's a description of the webinar:

Please join EBRI for a webinar reviewing findings from its latest research on spending behavior of older Americans. EBRI researcher Zahra Ebrahimi will examine how spending varies by retirement status, wealth, and demographic characteristics. We will then hear from Sharon Carson, Retirement Strategist, Executive Director at J.P. Morgan Asset Management, to understand the implications of these findings in assessing retirement income adequacy for financial planning purposes.

To register for the webinar, click here.

French Right to Die Case Comes to an End

Previously I had blogged about the legal battle over removing life support from Frenchman, Vincent Lambert. The New York Times reported recently on his death, Vincent Lambert, Frenchman at Center of Right-to-Die Case, Dies at 42.

His family and his spouse disagreed on his wishes. "His wife, Rachel Lambert, said that he had clearly stated that he would not wish to live in a vegetative state. His parents argued that ending his life support amounted to the murder of a disabled person. Siblings and other family members took different sides in the dispute."  As the article notes, "[e]uthanasia and assisted suicide are illegal in France. But the law allows patients who are terminally ill or injured with no chances of recovery to decide to stop treatments if the measures “appear useless, disproportionate” or if they seem to have no other effect than 'artificially maintaining life.'"  An article about the final court decision is available here.

In a related matter, the Judge for the Florida Schiavo case has written a chapter for a book, as explained in this article:

Inside the Terri Schiavo case: Pinellas judge who decided her fate opens up.  You should read it.

New Guide for Monitoring Conservatorships

The National Center for State Courts has released a new guide for monitoring conservatorships. Implementation Guide for ModernizingConservatorship Monitoring: Basic Strategies and Technology Enhancements explains that

Originally, this implementation guide was intended to encourage state courts to adop ttechnologies and analytics that would make immediate impacts. But like many intentions,the NCSC team, working with pilot states,realized that most state courts do not have the capacity to develop and implement such broad-scale changes at this time. In fact, data collection efforts showed that most state courts still have a difficult time documenting the number of active conservatorship cases.So rather than create a guide that few courts could implement, the purpose of this report is to inform readers of the efforts and advancements under way in light of problems posed by conservatorships. Regardless of the current situation within a state, the proposed strategies can be adapted to assist all courts.The project team encourages movement toward reforms that, ultimately, will improve court accountability and enhance protections for those individuals subject to a conservatorship. First laying the ground work of stakeholder support and improved data collection, then building toward technology solutions.

The document explains terminology, makes a case for reform, reviews and recommends the "Minnesota Model," reviews the experiences of pilot sites and offers 7 steps for modernizing conservatorship monitoring.

 

Low SNF Staffing Numbers

According to a recent story published in Modern Healthcare,  Nursing home staffing levels often fall below CMS expectationsfocuses on a new study that "[n]ursing home staffing levels are often lower than what facilities report, which could compromise care quality, new research shows....Self-reported direct staffing time per resident was higher than the CMS' payroll-based metrics 70% of the time, according to a new study published in Health Affairs. Staffing levels were significantly lower during the weekends, particularly for registered nurses."

We know the importance of staffing as a quality measure and ensuring quality of care, so this study is very important. "Researchers compared facility-reported staffing and resident census data and annual inspection survey dates from the Certification and Survey Provider Enhanced Reports to the CMS' long-term care facility Staffing Payroll-Based Journal from 2017 to 2018. The payroll-based data offered a more granular look, showing how staffing evolves over time rather than relying on static point-in-time estimates that were subject to reporting bias and rarely audited...."

When comparing for-profit SNFs with NFP SNFS, the researchers found the for-profits "more likely to report higher staffing numbers ... and [s]taffing levels increased before and during the times of the annual surveys and dropped off after." 

The use of payroll data to determine staffing levels has only been in effect a little over a year.  The story focuses specifically just on staffing levels. A log-in is required to access the study.

Older Adults Living in Isolation for Significant Amounts of Time

Pew Research has a new Fact Tank, "On average, older adults spend over half their waking hours alone" which explains that "Americans ages 60 and older are alone for more than half of their daily measured time – which includes all waking hours except those spent engaged in personal activities such as grooming. All told, this amounts to about seven hours a day; and among those who live by themselves, alone time rises to over 10 hours a day, according to a new Pew Research Center analysis of Bureau of Labor Statistics data."

That seems like a lot, especially when you compare the "alone-time" for other generations to this one: "people in their 40s and 50s spend about 4 hours and 45 minutes alone, and those younger than 40 spend about three and a half hours a day alone, on average. Moreover, 14% of older Americans report spending all their daily measured time alone, compared with 8% of people younger than 60."

Alone time isn't a bad thing-just ask any introvert-but even too much of a good thing can be ... too much.  Alone time "can be a measure [used for] social isolation" which can have a correlation to "negative health outcomes among older adults. Medical experts suspect that lifestyle factors may explain some of this association – for instance, someone who is socially isolated may have less cognitive stimulation and more difficulty staying active or taking their medications. In some cases, social isolation may mean there is no one on hand to help in case of a medical emergency."Living arrangements also play a role in how much time a person is alone. "More than a third (37%) of older adults who live alone report spending all their measured time alone. Among those who live with someone other than a spouse, the average amount of alone time a day is seven and a half hours."

Interesting stuff!

When Caregivers Themselves Are Old

I've blogged a number of times on the variety of issues regarding caregivers and caregiving.  A recent article in the New York Times presents an interesting perspective.  At 75, Taking Care of Mom, 99: We Did Not Think She Would LiveThis Long  discusses what the article describes as
“a growing phenomenon: Children in their  60s and 70s who are spending their retirement years caring for parents who are in their 90s and beyond.”

The article quotes one expert who describes this as “aging together” and this parental longevity has forced the caregiver child to redefine his or her retirement plans.  The article recommends ways for caregivers to take care of themselves and manage stress and discusses the importance of doing a cost-analysis “[t]o figure out what’s financially doable, it may help to seek professional advice. An accountant will calculate tax breaks for home care and other services. Local senior programs could offer guidance on free and reduced-cost programs, including counseling for burned-out caregivers.”

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

Poor Care in Hospice: OIG Report

Ugh, this article in the Washington Post covers a serious and worrisome topic. Hospices go unpunished for reported maggots and uncontrolled pain, watchdog finds reports on a recently released HHS Office of Inspector General report,  2019: Vulnerabilities in Hospice Care.

The OIG report is actually two reports "which found that from 2012 through 2016, the majority of U.S. hospices that participated in Medicare had one or more deficiencies in the quality of care they provided to their patients. Some Medicare beneficiaries were seriously harmed when hospices provided poor care or failed to take action in cases of abuse. OIG made several recommendations in both reports to strengthen safeguards to protect Medicare hospice beneficiaries from harm and to ensure hospices are held accountable for deficiencies in their programs."

The first report, Hospice Deficiencies Pose Risks to Medicare Beneficiaries, 07-03-2019 | Report (OEI-02-17-00020), found that

[t]he most common types of deficiencies involve poor care planning, mismanagement of aide services, and inadequate assessments of beneficiaries. In addition to these, hospices had other deficiencies that also posed risks to beneficiaries. These failings-such as improperly vetting staff and inadequate quality control-can jeopardize beneficiaries' safety and lead to poor care. In addition, one-third of all hospices that provided care to Medicare beneficiaries had complaints filed against them. Over 300 hospices had at least one serious deficiency or at least one substantiated severe complaint in 2016, which we considered to be poor performers. These hospices represent 18 percent of all hospices surveyed nation-wide in 2016. Most poor performers had other deficiencies or substantiated complaints in the 5-year period. Some poor performers had a history of serious deficiencies.

The full report is available here.

The second report, Safeguards Must Be Strengthened To Protect Medicare Hospice Beneficiaries From Harm, 07-03-2019 | Report (OEI-02-17-00021) found

[s]ome instances of harm resulted from hospices providing poor care to beneficiaries and some resulted from abuse by caregivers or others and the hospice failing to take action. These cases reveal vulnerabilities in CMS's efforts to prevent and address harm. These vulnerabilities include insufficient reporting requirements for hospices, limited reporting requirements for surveyors, and barriers that beneficiaries and caregivers face in making complaints. Also, these hospices did not face serious consequences for the harm described in this report. Specifically, surveyors did not always cite immediate jeopardy in cases of significant beneficiary harm and hospices' plans of correction are not designed to address underlying issues. In addition, CMS cannot impose penalties, other than termination, to hold hospices accountable for harming beneficiaries.

The second full report is available here. In addition there is a slide show available on YouTube,  a one page flyer available here, a one-page graphic of the top issues available here, a flyer on beneficiary rights available here and more.

25% Working Americans Don't Plan to Retire

Do you plan to retire?  If you answer is no, you aren't alone. According to a recent poll in the Associated Press, almost 25% of folks plan to keep work. Poll: 1 in 4 don’t plan to retire despite realities of aging found a possible "disconnection between individuals’ retirement plans and the realities of aging in the workforce." The realities of life ... and aging... "often force older workers to leave their jobs sooner than they’d like."  The article notes things like caregiving and health as reasons that cause folks to leave employment.  In addition to this nearly 25% who plan to keep working, which "[includes] nearly 2 in 10 of those over 50.... [r]oughly another quarter of Americans say they will continue working beyond their 65th birthday."

The article contains data regarding the impetus to keep working (including financial needs) and the perceptions among those in the workforce regarding the continued employment of older workers:

39% think people staying in the workforce longer is mostly a good thing for American workers, while 29% think it’s more a bad thing and 30% say it makes no difference.

A somewhat higher share, 45%, thinks it has a positive effect on the U.S. economy.

Working Americans who are 50 and older think the trend is more positive than negative for their own careers — 42% to 15%. Those younger than 50 are about as likely to say it’s good for their careers as to say it’s bad.

However, desire and reality aren't always a match. The article also discusses reasons why folks who want to keep working have to leave the workforce.

Thanks to Professor Naomi Cahn for sending me the link to the story.

Two New Articles to Add to Your Reading List

Professor Tara Sklar emailed me to let me know of the publication of two new articles. Her first, Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention appears in 28 Annals of Health Law 195 (2019) and is also available on SSRN.

Here is the abstract

Over the last three decades, there has been a steady movement to increase access to aging in place as the preferred long-term care option across the country. Medicaid has largely led this effort through expansion of state waivers that provide Home and Community-Based Services (HCBS) as an alternative to nursing home care. HCBS include the provision of basic health services, personal care, and assistance with household tasks. At the time of this writing, seven states have explicitly tailored their waivers to support aging in place by offering HCBS solely for older adults, individuals aged 65 and over. However, there is growing concern about aging in place contributing to greater risk for social isolation, and with that increased exposure to elder abuse. Abuse, neglect, and unmet need are highly visible in an institutional setting and can be largely invisible in the home without preventative measures to safeguard against maltreatment. This article examines the seven states with Medicaid HCBS waivers that target older adults, over a 36-year period, starting with the first state in 1982 to 2018. We conducted qualitative analysis with each waiver to explore the presence of safeguards that address risk factors associated with elder abuse. We found three broad categories in caregiver selection, quality assurance, and the complaints process where there are notable variations. Drawing on these findings, we outline features where Medicaid HCBS waivers have the potential to mitigate risk of elder abuse to further support successful aging in place.

The second article, Elderly Gun Ownership and the Wave of State Red Flag Laws: An Unintended Consequence That Could Help Many will be published in the Elder Law Journal. It is currently available on SSRN here.

Here is the abstract

There is rising concern among health professionals and in legal circles to address gun ownership for older adults who display signs of cognitive decline, including dementia. However, elderly gun ownership remains underexamined, partly because incidents of gun violence among the elderly tend to occur in domestic settings and are much less visible than shootings in public areas. In contrast, there is widespread attention to curb mass gun violence through state legislation. Specifically, red flag laws, also known as Extreme Risk Protection Orders, have doubled in 2018 with thirteen states enacting red flag laws and over thirty states having introduced or planning to introduce this legislation. Although red flag laws were not intended to address elderly gun ownership, they uniquely apply where other gun control laws fall short, as red flag laws provide the legal process to temporarily remove access to guns for persons believed to be at an elevated risk of harming themselves or others.

This Article surveys the thirteen states that have enacted red flag laws and analyzes key legislative elements across these states. The state laws have notable variations, including authorized persons who can petition a court for a protection order, standard of proof requirements, and the length of time an order is in effect. These variations have implications for elderly gun owners and their families, particularly in how they relate to the climbing rates of cognitive decline, suicide in late life, and elder abuse. The current wave of red flag laws across the country offer an opportunity to provide greater awareness around elderly gun ownership and prevent crises from becoming tragedies.

I was particularly interested in this second piece, because we recently offered a webinar at Stetson for elder law attorneys on dementia and gun ownership.  Information about the webinar and how to order an audio download are available here.

Congrats Professor Sklar and thanks for letting us know about your articles!

Does the ALF Industry Need Federal Oversight?

That was the question posed in a recent article published in Cleveland.Com.  Amid growth of assisted living, some renew calls for federal oversight opens with an examiniation of hte requirements to be employed as an aide in ALFs.

Just read this to get a sense of the issues illustrated in this article:

The number of assisted-living centers in the United States has jumped more than 150 percent in the past 20 years, fueled by an increase of residents with cognitive issues, a willingness of facilities to take more frail patients, and families who wish to avoid nursing homes.

But while the centers’ clientele has changed dramatically, there have been few efforts to systemically re-evaluate staffing or training guidelines necessary to properly serve residents. This has led some advoctates of the elderly to renew the call for federal oversight of the facilities, much like nursing homes.

For instance, nearly half of the nation’s states lack extensive training programs for the facilities’ employees, with most requiring some form of a job orientation and less than a dozen hours of instruction.

When it comes to staffing, the differences are even more stark. Thirty-eight states leave the amount of personnel needed to care for residents up to individual facility owners.

These variations fuel the position that federal oversight is needed, mainly because it would provide consistency. But there are opponents of the idea who think it will make ALF oversight more bureaucratic and expensive. With Medicaid waivers covering the cost of ALFs in some situations, the argument for federal oversight gains strength. "But because Medicaid’s role is increasing in assisted living, advocates for the elderly say the U.S. Centers for Medicaid and Medicare Services, which oversees nursing homes, should also monitor assisted-living facilities."

The article discusses efforts at the state level of ensure quality of care and offers argument both in favor of and against involvement of the feds.

What do you think?

 

Jelly Drops For Folks with Dementia

Sounds yummy, doesn't it.  My dear friend, colleague and frequent blog reader ran across a story about Jelly Drops  which are described on the company's website as "Hydrating treats for people with dementia." The article sent by my friend explains that "they’re hydrating treats shaped like raindrops that come in a treat box with a see-through lid. The drops are meant to be appealing to people with dementia, as well as easy to grasp and swallow, and they contain water and electrolytes to help keep elderly patients hydrated."  Both the story and the website explain the inventor's motivation for creating the product.  The photo on the website shows colorful and yummy looking pieces. Hopefully the product will be available before long. Anyone who has had a relative with hydration issues will understand the value of a product such as this.

 

BTW, Happy 4th of July!