Elder Law Prof Blog

Accessibility of Elder Housing-What Happens When the Elevator is Out of Order?

A local news station recently ran an article about the impact of a broken elevator on the residents who live on top floors in  8 On Your Side gets results for seniors in building with broken elevator.   Knowing my colleague and dear friend, Professor Bauer, had written an article on 55+ housing that included a discussion of accessibility issues, I asked him if he'd write a guest post for us on this topic. Here it is:

Would You Please Just Fix It?

By
Mark D. Bauer
Professor Law
Stetson University College of Law

 

A recent news story in Tampa Bay reported that the single elevator in a mid-rise apartment building stopped working in late May and would not be repaired until October.  That alone is surprising and seems wrong.  But what makes this story particularly shocking is it occurred in an age 62 and older HUD subsidized building.  Even more shocking:  there are no federal laws regulating elevator repairs in federally managed or sponsored elder housing.

The story was made for television.  A local news station interviewed numerous tenants with disabilities incapable of walking down staircases.  One elder tenant interviewed said she had not been able to leave her home in two months and she found it very depressing.  I have little doubt that most anyone would feel the same way.

The good news is that by airing this story and providing publicity to the tenants, the company managing the apartment complex arranged for free hotel rooms for any resident desiring one.  The elevator still will not be repaired until October because a part needs to be manufactured abroad.  But at least the elder tenants now have an alternative to remaining prisoners in their own homes.

The bad news is that while this particular situation may be extreme, elder residents of multi-story apartment buildings are often trapped in their homes with little warning and no real alternative.  The fact that most elevator repairs take less than six months is little comfort.

Department of Housing and Urban Development regulations require only the most basic life safety features in elder housing, such as smoke detectors.  Most state and local laws covering elevators require that they be inspected and remain in good repair.  It is always hard to search for the absence of a law or a case, but I have found nothing in the United States that regulates how long a repair may take.  Unfortunately, I suspect the answer is “as long as needed.”

I did find one relevant case in Indiana where residents of elder housing suffered without elevators for over a month and then sued.  On procedural grounds, the federal court held that the residents might have a viable argument under the Americans with Disabilities Act but could not sue under traditional landlord-tenant law (here the residents claimed that the broken elevator “constructively evicted” them).  And as you might imagine, once the judge opened the door just a crack for possible litigation, the owners of the elder housing complex immediately fixed the elevator and settled with the residents.

It is ironic that the government sponsors or subsidizes elder housing without ensuring the physical safety of the residents, particularly when private entities often profit through participation in these programs.  In researching this issue, a simple Google search produced literally hundreds of news stories about elders all over the country being trapped in multi-story buildings during lengthy elevator repairs.  Like the situation here in Tampa Bay, the elevators were often repaired quickly after a local news story.

Even elevators in good repair cannot function without electricity.  After many elders were killed or injured in Florida after a major hurricane in 2005 made their apartments inaccessible, a state law was passed requiring all 55 and older housing to add emergency generators for elevators.  The real estate lobby was particularly effective here and got the state legislature to repeal the law a short time later.

Subsidized or government-owned congregate housing for elders is aging; few units have been added since the 1980s, and certainly not enough to replace housing demolished or converted to other uses.  Five elevator companies remain after industry consolidation, and only one is located in the United States.  It is no surprise then that elevators installed in the last century are difficult to repair.  Cities and counties with large elder populations often spend extraordinary amounts of money responding to emergency calls requiring firefighters to carry elders down staircases.

It is easy to ignore a problem like stranded elders in high-rises because any single building has these problems infrequently, and with no publicity.  But nationally we are putting lives in danger and wasting precious public funds by ignoring the problem.  Currently it is very unlikely that HUD will take any corrective action.  But in the long-run, it would be much cheaper to plan for broken elevators by requiring elder communities to provide for temporary accessible housing, or coordinate services necessary for daily living, or require emergency generators in mid- or high-rise buildings with only one elevator.

Professor Bauer's law review article on 55+ housing is available here.  Thanks Professor Bauer!

Veterans Victims of Consumer Scam

The New York Times recently reported indictments against five perpetrators of an identity theft scam that targeted vets.

5 Indicted in Identity Theft Scheme That Bilked Millions From Veterans explains how the scam worked:

First, they secretly photographed the Social Security and bank account numbers of thousands of veterans and senior military members on a computer screen at a United States Army base in South Korea.

Then, they used the personal information to withdraw or reroute millions of dollars in disability benefits and other payments made to veterans. The stolen funds were later wired to the bank accounts of so-called money mules and laundered so that they could not be traced.

The perpetrators were charged with aggravated identity theft, wire fraud and conspiracy according to the article.  Described as the largest ever perpetrated against military personnel, "the personal information of more than 3,000 veterans and military personnel had been compromised over a period from 2014 to 2019. Many of the victims were disabled and older, and were unlikely to access their account information online." DOJ is still looking to identify victims.  "The Justice Department and Veterans Affairs are in the process of notifying victims and trying to help them recover lost funds."

Medicare Observation Status: Post-Trial Report

I reported a couple of weeks ago about the trial in federal court in Connecticut on observation status. The trial has concluded. Here is an update from the Center for Medicare Advocacy

Since 2011 the Center for Medicare Advocacy has been pursuing a nationwide class action lawsuit seeking an appeal for Medicare beneficiaries who are classified as hospital outpatients in observation status. (Alexander v. Azar, 3:11-cv-1703, U.S. District Court, Connecticut.) Co-counsels in the case are Wilson, Sonsini, Goodrich & Rosati and Justice in Aging.

The Alexander trial was held before US District Court Judge Michael Shea from August 12 – 20, 2019. The Judge ordered post-trial briefing, which is expected to take approximately 75 days. Then the parties will await Judge Shea’s decision.

Medicare beneficiaries who received “observation services” in a hospital on or after January 1, 2009 and either did not have Medicare Part B, or, were hospitalized for at least three consecutive days but not three days as an inpatient, may be a member of the Alexander class. No action is required to “join” the class. Individuals who meet the class definition, are in the class (note that the class definition is subject to change). We recommend saving paperwork related to the hospital observation status and to costs that may have resulted from it.

Do POLST Forms Require Authorizing Legislation to be Effective?

In Pennsylvania, we've had bills pending for several years that would expressly authorize the use of POLST forms for agreements between physicians and their patients about life-sustaining treatments.  Pennsylvania has a fairly long history of dragging its feet about enacting laws regarding end-of-life decisions, and was one of the last states to formally recognize so-called living wills or other advanced health care directives.   The traditional legal reason for statutory authorization is that statutes validate pre-incapacity decisions that will only become effective once incapacity occurs.  The authorization, in essence, allows the document to survive the incapacity of the principal.  

But is this same reasoning applicable to POLST forms? Is legislation required to make this form of "planning" effective?  As currently used, the forms require a conversation between the health care provider and the patient (or the patient's representative -- and that can get tricky in Pennsylvania), usually in the context of hospitalization or an immediate or looming health crisis, that results in the patient's "informed" decisions becoming the "doctor's order" for treatment.  In 2006, a Pennsylvania law directed establishment of an advisory committee "to assist in determining the advisability of using" POLST forms that "detail the scope of medical treatment for patients' life-sustaining wishes."  The committee included representatives of the state's medical society, the joint state government commission that advises on Pennsylvania law, the Pennsylvania Bar association and relevant state agencies.  Following a grass roots movement to implement the POLST concept, eventually a Pennsylvania Department of Health form was developed and approved on a trial basis with individual hospitals.  The bright pink POLST forms currently in use in Pennsylvania certainly look "official."  

In December 2018, after another attempt to create clear state authority for POLST failed to reach a vote in the Pennsylvania House, one of the Senate sponsors wrote to explain why passage is important.  Senator Gene Yaw takes the position that clarity of scope of authority, prohibitions on improper insurance company use, portability or the orders for transfers between facilities and clarity of application during emergency medical services are all necessary elements of statutory authority, needed to assure that "individuals ... have the right to dictate end-of-life decisions in a manner that is sensitive to the situation at hand." Two bills are currently pending, PA Senate Bill 142 (Printer's No. 117) and PA House Bill 997 (Printer's No. 1118).

In the meantime, it seems that patients are creating POLST orders with physicians in Pennsylvania, without authorizing legislation.  

Napping More Than Usual? Read This Article.

We have all had that after lunch afternoon slump where we just want a nap. Do you find yourself napping more than usual? There is a new study on changes to sleep-wake cycles and Alzheimer's. For the non-scientist like me, here's the USA Today story:  Napping more? That could be an early symptom of Alzheimer's, new study says.

So wait, don't panic if you are a normal napper.  Here's a segment from the article that explains: "People who develop Alzheimer's tend to sleep more during the day, taking naps or feeling drowsy and dosing off. Sometimes, they wake up during the night; that's called fragmented sleep .... If napping is a part of your routine on a regular basis though, you don't need to worry about taking an afternoon snooze, or mid-morning for that matter."  So it's all about the change in sleep patterns. Whew.

Here's the abstract for the article about the study.

Introduction

Sleep-wake disturbances are a common and early feature in Alzheimer's disease (AD). The impact of early tau pathology in wake-promoting neurons (WPNs) remains unclear.

Methods

We performed stereology in postmortem brains from AD individuals and healthy controls to identify quantitative differences in morphological metrics in WPNs. Progressive supranuclear palsy (PSP) and corticobasal degeneration were included as disease-specific controls.

Results

The three nuclei studied accumulate considerable amounts of tau inclusions and showed a decrease in neurotransmitter-synthetizing neurons in AD, PSP, and corticobasal degeneration. However, substantial neuronal loss was exclusively found in AD.

Discussion

WPNs are extremely vulnerable to AD but not to 4 repeat tauopathies. Considering that WPNs are involved early in AD, such degeneration should be included in the models explaining sleep-wake disturbances in AD and considered when designing a clinical intervention. Sparing of WPNs in PSP, a condition featuring hyperinsomnia, suggest that interventions to suppress the arousal system may benefit patients with PSP.

The full study is available here.

Abuse of SNF Resident On Video

This is just a sad story.  Margaret Collins resident of a SNF, was abused by those tasked with caring for her, according to an article in Huffington Post. Family Sues After Video Shows Nursing Home Workers Taunting Elderly Dementia Patient summarizes the events. Read the story and watch the video. It can be a good jumping off point for a discussion of the importance of resident rights, and litigation and regulations.   Other stories about this are available here,  here , here, and here to include a few. Additional info is available on the blog of the attorneys for the plaintiffs.

Thanks to Professor Dick Kaplan for alerting me to the story.

UBER and LYFT as the Answer to Elder Transportation Needs?

The New York Times was considering that question in a recent article,Older People Need Rides. Why Aren’t They Using Uber and Lyft?

More than half of adults over 65 own smartphones, the Pew Research Center has reported. Yet among adults 50 and older, only about a quarter used ride-hailing services in 2018 (a leap, however, from 7 percent in 2015). By comparison, half of those aged 18 to 29 had used them.

In a survey by AARP last year, only 29 percent of those over 50 had used ride-hailing apps. Two-thirds said they weren’t likely to do so in the coming year, citing in part concerns about safety and privacy. (Given data breaches at Uber, that’s no baseless fear.)

So wouldn't these options help people remain more independent, especially while we wait for self-driving cars to become widely available for all of us? One expert quoted in the article said absolutely! "One reason for such optimism: evidence that with personalized instruction, older adults can master the mobile apps and take “networked transportation” to medical appointments, entertainment and leisure activities, social visits and fitness classes."

A recent study from U.S.C. covered in the article noted when the researchers "offered three free months of unlimited Lyft rides to 150 older people in and around Los Angeles (average age: 72) who had chronic diseases and reported transportation problems... [w]ith training, nearly all used Lyft, most through the mobile app (a few used a call-in service), for an average of 69 trips. On follow-up questionnaires, almost all riders reported improved quality of life."

That's great news but the companies are seeing an opportunity here. 

Lyft and Uber and others are contracting with third parties, bypassing the need for older riders to use apps or to have smartphones at all.

They’re joining forces with health care systems, for instance. In the past 18 months, more than 1,000 — including MedStar, in the Washington area, and the Boston Medical Center — have signed on with Uber Health for “nonemergency medical transportation,” the company said.

Case managers and social workers can use Uber or Lyft to ferry patients to or from clinics and offices, reducing missed appointments.

In addition, they are working with various senior communities and exploring other programs for those who have mobility issues, including the ability to order accessible transportation and training drivers of how to assist riders with mobility issues!  There are other smaller companies carving out a part of the market, whether portal-to-portal service or the ability to call for a ride by phone. The article also explores the potential costs in using ride-hailing services.

In the U.S.C. study, the typical trip cost $22; the cost per month, had users actually paid it, averaged $500. After the study, about a fifth of riders said they wouldn’t continue using ride-hailing, mostly because of cost.

Some Medicare Advantage programs now cover rides to medical appointments and pharmacies; Lyft expects to partner with most Advantage plans by next year....But most older Americans still use traditional Medicare, which doesn’t cover such transportation.

 

Filial Friday: Making Decisions about Where and How You Will Live as You Age

I suspect every elder law attorney has experienced the Friday Syndrome, where an individual calls the office to seek an emergency appointment because he or she has flown in to visit parents and has discovered new chaos.  Perhaps it is a parent who is much more ill than anyone was letting on during phone calls.  Perhaps it is discovering a huge pile of unpaid bills with no explanation for why they are overdue.  Perhaps it is because the parents have said -- finally -- we need to make a decision and we want to make it today.

There are many variations on the Friday Syndrome, and frequently they involve a common human trait, procrastination, or as my fifth grade teacher called it, "The Scarlett O'Hara Syndrome."  I didn't understand what she meant at the time, having not yet seen Gone with the Wind with Scarlett's  classic last line, "After all, tomorrow is another day."  But I did eventually figure out that my teacher was referring, in less than favorable terms, to my personal approach to homework assignments!

A friend who I often run into during early morning swims, attorney and financial planning advisor Alvin Blitz, shared with me a variation on the theme with his recent column on "Taking Control of Your Destiny."  He recounts lessons from his 20 years of travel on behalf of Masonic Villages, as he works with individuals and couples who are thinking about a move to a continuing care retirement community (CCRC).  He starts with the premise that while change is a difficult word to swallow, "resisting change usually results in a bad outcome."  He describes two scenarios involving couples facing decisions about whether to stay in their own homes.  

In the successful scenario, the couple began their reckoning with age while still in their early 70s, making a preliminary decision to downsize and live in a townhouse in a 55 plus retirement community, spending many years enjoying their neighbors and participating in activities geared to their stage in life.  "As time went on, the husband was diagnosed with dementia, which required them to make another hard decision," reports Alvin. Eventually they decided that they needed a place where the husband's mental status could be accommodated and the wife would be able to stay active and supported in her new roles with her husband.  In the CCRC, they were able to enjoy a "balance of independence and quality of life together while their health problems are addressed, without needing to rely on other individuals to make life decisions for them."

In the less successful scenario, the couple tried to stick in out in their 1950's castle.  "Finally,  the inevitable happened. the husband had a debilitating stroke. Family members from afar rallied to help, but time took its toll.  The wife had medical problems and landed in the hospital.  Decisions on care and where to live became limited and were thrust upon them by their circumstances."   

Alvin reminds us that making affirmative decisions about housing and care as you age can lead to a much "softer landing" than an alternative that depends on happenstance.   He also explains, helpfully, what it might mean to live in a CCRC where there is a clear mission, such as the fraternal mission at Masonic Villages where members of the Masonic organizations (including Eastern Star) can receive continuing compassionate care, even if the individual no longer has assets to pay for care.  

For more, read Alvin Blitz' August 2019 article, Taking Control of Your Destiny, from  his newsletter, appropriately called "The Blitz." 

 

  

Recent Developments on Guardianship Laws

There are a couple of recent developments I wanted to point out to you. One is a bill recently introduced in the House of Representatives, H.R. 4174, the Guardianship Accountability Act of 2019.  Section Two of the bill contains findings and purposes:

 (a) FINDINGS.—Congress finds the following:

(1) An estimated 1,300,000 adults and approximately $50,000,000,000 in assets are under the care of guardians in the United States.

(2) Most guardians are selfless, dedicated individuals who play an important role in safeguarding individuals in need of support. However, unscrupulous guardians acting with little oversight have used guardianship proceedings to obtain control of individuals in need of support.

(3) Once a guardianship is imposed, there are often few safeguards in place to protect against individuals who choose to abuse the system and few States are able to report accurate or detailed guardianship data.

(4) A full guardianship order may remove more rights than necessary and may not be the best means of providing support and protection to an individual. If individuals subject to guardianship regain capacity, all or some rights should be quickly and efficiently restored.

(5) States should encourage courts to use alter natives to guardianship through State statutes, including the adoption of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, to ensure better protections and control for individuals being considered for guardianship and those pursuing a restoration of their rights.

(6) A national resource center on guardianship is needed to collect and publish information for the benefit of courts, policy makers, individuals subject to guardianship, guardians, community organizations, and other stakeholders.

(b) PURPOSES.—The purposes of this Act are to help States improve guardianship oversight and data collection by—

 (1) designating a National Online Resource Center on Guardianship;

(2) authorize grants for the purpose of developing State Guardianship Databases; and

(3) establishing procedures for sharing background check information related to appointed guardians with other jurisdictions.

The bill calls for the Elder Justice Coordinating Council to establish the National Online Resource Center on Guardianship as well as some steps at the state level regarding data collection and analysis.   Read the bill here.

The second item is from the Governor of New Mexico who in a recent speech at the state's conference on aging indicated improving the guardianship system is a priority. Governor vows to stop guardianship abuse  explains that in her speech the Governor

said her administration is working to correct a number of problems, including those related to guardianship.

“Here in New Mexico, veterans, senior citizens and disabled adults have been taken advantage of by unscrupulous court-appointed, corporate guardians,” she told the conference....

Corporate guardians, she said, “have been stealing people’s property, separating them from their families and hiding their benefits, as well as “locking folks away where nobody can find them and nobody can visit.”

Her administration, she said, is working to prevent this and adopt the best possible standards and safeguards. McCoy, who will become the director of the state Developmental Disabilities Planning Council, will lead that effort.

There is more action that just these two items, so keep reading this blog as we report on more updates.

Informal Will Creation and the Problems They Can Cause: The Aretha Franklin Example

From the New York Times, a window into what can happen when the high profile matriarch of a family either had "no" estate plan, or perhaps left behind three handwritten written documents that "could" be treated as wills.  

Family squabbles over celebrity estates are not rare, as infighting over the estates of Prince, James Brown and, more recently, Tom Petty, have made clear. But Franklin’s case is especially complex because determining how she wanted her assets distributed involves deciphering whether any of the three hand-scrawled documents found in her home three months ago — one of them under the couch cushions — should be embraced as her will. 

 

When [Aretha] Franklin died, at age 76, her family believed she had no will. Under Michigan law, that meant her estate would be divided equally among her sons. With that understanding, the sons approved the appointment of a cousin, Sabrina Owens, as the estate’s personal representative, or executor.

 

But if any will is accepted by the probate judge overseeing the estate, that formula for the distribution of assets would be upended, with far-reaching consequences for Franklin’s sons, whose earnings could change — some drastically, depending on which will is declared legitimate. Ms. Owens’s status as executor would also be in jeopardy.

 

“The wills changed everything,” Charlene Glover-Hogan, a lawyer for Kecalf Franklin, the singer’s youngest son, said at a contentious court hearing on Aug. 6.

My thanks to my colleague, Professor Laurel Terry, for this link!

 

Medicare Abroad? Don't Retire Abroad Without Thinking This Through.

Kaiser Health News ran an article about the issues Medicare presents for beneficiaries who want to retiree to other countries. Dream Of Retiring Abroad? The Reality: Medicare Doesn’t Travel Well explains the issues:

As the number of American retirees living overseas grows, more of them are confronting choices ... about medical care. If they were living in the United States, Medicare would generally be their coverage option. But Medicare doesn’t pay for care outside the U.S., except in limited circumstances.

Expatriate retirees might find private insurance policies and national health plans in other countries. But these may not provide the high-quality, comprehensive care at an affordable price that retirees expect through Medicare. Faced with imperfect choices, some retirees cobble together different types of insurance, a mix that includes Medicare.

The article notes that the quality of the health care may be dependent on the country, and as the number of U.S. retirees move to other countries, they need to think hard about how they will pay for health care. The article discusses issues with private health insurance policies, the costs and rates, which may be different depending on the country.  Even with private health insurance, expats need to look at Medicare as the article explains:

Even when retirees buy a private policy, Medicare is another piece of the puzzle that they have to consider. Once people become eligible for Medicare coverage, usually at age 65, they face a 10% premium penalty for every 12 months they are not enrolled in Part B, which covers outpatient services. (People who are 65 but still covered by an employer plan generally do not face that penalty.)

After paying into the Medicare system for decades, it’s no wonder some expats are frustrated that they can’t generally use the program outside the United States.

That’s just the way the law is written, an official at the federal Centers for Medicare & Medicaid Services said.

...

And retirees should honestly consider whether they will spend the rest of their lives overseas.

Register Now: Webinar on Access to Justice in Older Age

The Global Alliance for the Rights of Older Persons has announced an upcoming webinar on August 22, 2019 from 7-8 a.m. edt (yes that's correct 7-8 AM).   Here's info about the webinar:

Access to Justice is one of the new areas of older people’s human rights that will be discussed at the 11^th session of the Open-Ended Working Group on Ageing in New York from 6-9^th April 2020. The UN will soon call for written submissions on this topic, which will play an important role in shaping the debates that will happen at the 11^th session.  A strong civil society response to this consultation is vital. This webinar will explore some of the key issues and barriers around access to justice in older age. It will also offer tips and support on how you can prepare high quality substantive inputs to the upcoming UN consultation.  

• Moderator: Susan Somers (INPEA and GAROP Steering Group member)
• Panelist: Bill Mitchell (Townsville Community Legal Service, Australia)

To register for this important webinar, click here.

Maine as the Bellwether State for the Nation's Elder Care Crisis

The Washington Post offers a feature story on Maine's current care employment crisis for all industries serving frail elders, including nursing, home-care agencies, nursing homes, hospice programs and hospitals.   Pointing to one town's dramatic needs, as the demographic "oldest" city in the "oldest" state in the nation, the article makes clear that the problems are likely coming to communities all across the country -- and certainly I have witnessed it first hand in Arizona.  

With private help now bid up to $50 an hour, Janet and her two sisters have been forced to do what millions of families in a rapidly aging America have done: take up second, unpaid jobs caring full time for their mother.

 

“We do not know what to do. We do not know where to go. We are in such dire need of help,” said Flaherty, an insurance saleswoman.

 

Across Maine, families like the Flahertys are being hammered by two slow-moving demographic forces — the growth of the retirement population and a simultaneous decline in young workers — that have been exacerbated by a national worker shortage pushing up the cost of labor. The unemployment rate in Maine is 3.2 percent, below the national average of 3.7 percent.

 

The disconnect between Maine’s aging population and its need for young workers to care for that population is expected to be mirrored in states throughout the country over the coming decade, demographic experts say. And that’s especially true in states with populations with fewer immigrants, who are disproportionately represented in many occupations serving the elderly, statistics show.

In terms of statistics, one "crucial milestone" is the percentage of a population older than 65, the "super-aged" label.  In Maine, one-fifth of the state's population is in that category, and by 2026, Maine is predicted to be joined by 15 other states, with another dozen reaching the same level by 2030.  

Across the country, the number of seniors will grow by more than 40 million, approximately doubling between 2015 and 2050, while the population older than 85 will come close to tripling.

There are tough statistical realities to confront, including the tension between living wages for workers and affordability for families paying for care out-of-pocket.   One of the subtle issues is how to manage pay.  Employment agencies often retain at least half of the dollars charged for hourly care.  Families who want or need to pay privately must make a very real decision on whether to pay "on" or "off" the books.  For those paying on the books, it means learning to navigate systems for withholding proper amounts for taxes, any insurance and other deductions.  

My thanks to my colleague, Health Law Expert Matthew Lawrence, for pointing to the original Washington Post article, subtitled "This will be catastrophic." 

Observation status trial

Last week, the class action suit against CMS on observation status finally went to trial.  According to the story from the Medicare Rights Center, Lawsuit Seeks to Improve Medicare Beneficiary Access to Nursing Facilities explains the importance of the case, as the trial started last week:

Because an observation stay is not officially considered an inpatient stay, it does not count as a qualifying hospital stay for purposes of Medicare SNF coverage—which means Medicare will not pay for any subsequent SNF care. This leaves patients on the hook for the entire cost of a needed SNF stay—potentially thousands of dollars.  Beneficiaries unable to afford this care may self-discharge against medical advice and return home before they are physically or mentally ready, and potentially suffer further devastating and expensive acute health effects.

Currently, people with Medicare cannot appeal the decision to classify a hospital stay as an outpatient stay, but a court case—Alexander v. Azar—may change that. In 2011, seven plaintiffs filed a class action lawsuit to try to gain the right to appeal the decision to classify them as outpatients in observation stay instead of as inpatients who would potentially be eligible for SNF coverage. After many twists and turns, the case has finally made it to trial.

More information about the trial that got underway last week was provided in a Kaiser Health News article, Class-Action Lawsuit Seeks To Let Medicare Patients Appeal Gap in Nursing Home Coverage which contains lots of interesting info about the issue and the litigation.  For example, "'HHS’ Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It’s No. 1 on a list issued last month of the 25 most important inspector general’s recommendations the agency has failed to implement." The importance of this case can't be emphasized enough.  I'll update you when I know more.

Medical Aid in Dying in NJ on Hold

The AP has reported that a judge has temporarily enjoined the NJ Medical Aid in Dying law that went into effect a few weeks ago.  The hearing is scheduled for October according to the story, New Jersey’s medically assisted suicide law put on hold. 

"The order means that New Jersey’s recently enacted measure cannot be enforced by the state attorney general and comes in response to a lawsuit brought by a doctor practicing in the state... [who argues in the lawsuit] that immediate and irreparable damage will probably result in view of the fact that if its enforcement is not immediately enjoined, New Jersey citizens can actually begin dying.”  The plaintiff, a doctor, contends "that the law is an affront to religious doctors [and] the law violates constitutional rights as well as common law barring suicide."

Stay tuned.

Are Long Term Care Insurance Losses at the Heart of Financial Woes for General Electric?

The Wall Street Journal and other news sources are reporting on a financial research report released publicly today by an accounting expert -- the one who blew the whistle on the Bernie Madoff scheme -- and his investigation team, that alleges massive inaccuracies and fraudulent filings by General Electric Company.  GE officials are fighting back, alleging market manipulation is the motive behind the report.  From a Wall Street Journal article on Thursday, it seems GE's liability for losses on its long-term care insurance products is a key focus:

The Markopolos group includes John McPherson, co-founder of MMS Advisors, forensic accountants specializing in the insurance industry. The group worked for seven months to analyze GE’s accounting.

 

Mr. Markopolos said he is going public with the report now because the group just finished its work. It had been working on another insurance case when GE’s insurance problems caught its eye, he said.

 

The group claims GE’s long-term-care insurance holdings are a bigger liability than the company is letting on. The report estimates GE will need to boost its insurance reserves by $18.5 billion in cash and take a $10.5 billion charge because of an accounting change required by 2021.

 

Those figures are on top of a $15 billion reserve boost already taken by GE over seven years to cover its exposure to long-term-care policies, which cover expenses like nursing homes and assisted living. The policies have proved to be a problem for many insurers. The companies drastically underestimated the number of future claims and how long people would draw on the coverage before dying.

 

“We believe that our current reserves are well-supported for our portfolio characteristics, and we undertake rigorous reserve adequacy testing every year,” GE said in its press release. 

On the one hand, as an occasional observer of LTC industry woes, it seems hard for me to believe that at this point any company would try to hide or downplay the high-profile losses that the LTC industry has encountered for more than 10 years.  Nonetheless, the whistleblower team's  allegations are pretty bold, especially set against the market instability overall this week.  

Mark Your Calendars: Webinar on Legal Basics: Representing a Client in a Defense of Guardianship Case

The National Center on Law & Elder Rights is offering a free webinar on September 10, 2019 at 2 p.m. edt on Legal Basics: Representing a Client in a Defense of Guardianship Case.  The speakers are David Godfrey from the ABA Commission on Law & Aging and Catherine Seal, Esq. Here's info about the webinar

Lawyers serve an essential role in protecting the due process rights of every defendant or respondent in an adult guardianship case. This can include presenting evidence that no guardian is needed or that a limited guardianship is sufficient to provide the protections that are needed. This webcast will focus on the role of an attorney representing the interests and wishes of a client who is the subject of a guardianship action.

Presenters will share:

• How to protect the client’s due process rights; 
• Options for when a guardian/conservator is not needed;
• How to respond when the filing asks for more protection than is needed; and 
• Actions to take when a guardianship order is no longer needed or a less restrictive order is needed.

This training will explore common due process concerns and substantive defenses in adult guardianship cases. Presenters will discuss how to develop and present evidence advocating for the least restrictive alternatives in an adult guardianship case. 

To register, click here

Caregiver Guilt: "When Will You Be Back?"

Recently I was talking with a friend about the challenges of family caregiving.  She regularly drives many miles to help her mother, who has dementia and is living in another city in her own home.  My friend tried inviting her mother to share the daughter's home.  To put it mildly, that plan did not work. 

Her mother wanted to go back to her own home.  Paid in-home caregivers are often essential components of any such plan, and my friend, as an only child, is the person "on call" whenever one of them cancels at the last minute, as well as visiting regularly to plan meals, do shopping, take her mother on outings and the many loving tasks that tend to fall to family members.   

My friend says that one of the hardest parts of each visit is that her mother always asks, "when will you be back?"  The mother probably isn't intending to put pressure on her daughter, but the pressure is still there, accompanied by the daughter's thought, "Am I doing enough? -- Should I quit my job and move here to be closer to my mother?"  

My sister felt this kind of pressure with our mother, even though she spent almost every evening with her, especially during her last year.  My sister would finish her long day as a primary school administrator and drive 45 minutes in rush hour traffic to be with Mom at dinner and to visit with her while she watched some television, helping her get ready for bed.  And my mother would ask ,"Will I see you tomorrow?"  "Of course,"  was the usual answer.   I know my sister felt guilt, even though she was doing everything imaginable to ease the strain for our mother, as her daily life became complicated by deepening dementia.

My father had slightly different questions for me as the "out-of-state" daughter.   As soon as I arrived from my latest flight on good ol' Southwest Airlines plus a taxi cab drive, he wanted to know,  "When are you leaving?"  I would chuckle and say in mock protest, "I just got here; you can't get rid of me yet." (Of course, with dementia, such questions are often asked not just once, but are repeated multiple times in the course of the same hour.) Eventually I realized that what Dad enjoyed the most was the break in the routine from being trapped at home with dementia, as he would usually ride along with whomever was taking me back to the airport.   He liked rides in general, but he especially appreciated a car trip with a purpose, a purpose he still understood.  

My mother had her own variation for me.  She would be startled when she realized I was leaving at the end of a visit, and she would ask with a worried frown, "Will you be back in time for Christmas?" Whether it was the coldest day in January or the hottest summer day in Phoenix she would ask me about my Christmas plans.  But, that's not  a bad "default" setting for someone with dementia, is it? 

I was always able to say, with sincerity, that yes, I would be back in plenty of time for Christmas. 

The Borchard Foundation Center on Law & Aging RFP for 2020 Academic Research Grants

The Borchard Foundation Center on Law & Aging has released its RFP for 2020 Academic Research Grants.  Here are some details:

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

Up to four grants of a maximum of $20,000 each will be awarded. The Center expects grantees to meet the objectives of the grant program through individual or collaborative research projects that either:

• analyze and recommend changes to one or more important existing public policies, laws, and/or programs relating to older adults, or
• anticipate the need for and recommend new public policies, laws, and/or programs necessitated by changes in the number and demographics of the country’s and the world’s elder populations, by advances in science and technology, by changes in the health care system, or by other developments.

It is expected that the research product will be publishable in a first-rate academic journal. Applicants are encouraged to disseminate research findings through additional channels such as conferences, stakeholder meetings, and white papers.

Larger budgets using outside matching funds are encouraged but not required. Favorable weight is given to proposals that indicate, where appropriate, that active attempts will be made to solicit required additional funds for the project (including a list of sources to be approached). Grant funds must be used for the approved budget purposes, which may include reasonable compensation for investigator(s), consultant(s), and research assistant(s), print and computer-based research materials, and other necessary expenses. Faculty salary support will not be approved other than for (1) summer when the applicant is not eligible for summer support from their university or (2) buying out a course. Grant funds may not be used for thesis or dissertation research, student tuition or fees, or university overhead or administrative charges.

Proposals must be submitted by one or more individual researchers who will be responsible for carrying out the project. Collaborating researchers may be affiliated with the same or different institutions. Grant funds must be administered by an academic, government, or other non-profit organization. Evidence of federal tax-exempt status is required before funds will be released.

The on-line application form on the Center’s website, www.borchardcla.org, will be available after September 15, 2019. Applications should be submitted no later than October 15, 2019. Selections will be made on or about December 15, 2019.

Proposals should include a narrative description of the research project (5 pages maximum), including proposed research activities, how the research meets the objective of the Center’s grant program, why the project is otherwise important, a description of the intended written research product(s), the journal(s) to which the work product(s) will be submitted for publication, and a statement regarding IRB approval. Required attachments are a project timeline, detailed budget (including matching support, if any), curriculum vitae of the investigator(s), and federal tax exemption letter evidencing the administrating organization is a 501(c)(3) organization not classified as a private foundation.

Within three months of project completion, grantees must submit by email a final written report that includes a description and chronology of the research and results and an accounting of grant funds. In addition, a short progress and status report must be submitted eight months following project commencement. Upon publication of any research products, either print or electronic copies should be submitted to the Foundation.

For further description of the Academic Research Grant Program, the Request for Proposals, and the application form, please see the Center’s Web site at www.borchardcla.org. For more information, contact Catheryn Koss, [email protected].

The online application is available here.

Early Diagnosis of Alzheimer's Through Testing

So we don't be on the cusp of a cure for Alzheimer's but recent stories indicate the medical folks might be getting closer to diagnosing it. First, the New York Times reported that we may soon have a blood test that can diagnose it.

A Blood Test for Alzheimer’s?  It’s Coming, Scientists Report

For decades, researchers have sought a blood test for beta amyloid, the protein that is a hallmark of Alzheimer’s disease. Several groups and companies have made progress, and [last]
Thursday, scientists at Washington University in St. Louis reported that they had devised the most sensitive blood test yet.

The test will not be available for clinical use for years, and in any event, amyloid is not a perfect predictor of Alzheimer’s disease: Most symptomless older people with amyloid deposits in their brains will not develop dementia.

But the protein is a significant risk factor, and the new blood test identified patients with amyloid deposits before brain scans did. That will be important to scientists conducting trials of drugs top revent Alzheimer’s. They need to find participants in the earliest stages of the disease.

Since we can't cure it, why do we want to diagnose it?

There is no treatment for Alzheimer’s, and very early diagnosis of any disease can be problematic, since it may not progress. So the first use for this blood test will probably be to screen people for clinical trials of drugs to prevent Alzheimer’s disease, said Dr. Michael Weiner, a neurologist at the University of California, San Francisco.

Ok, a blood test. Pretty easy, not too invasive.  Here's another test on the horizon, according to another article, again in the New York Times: A Brain Scan May Predict Alzheimer’s. Should You Get One? There is "criteria developed by the Alzheimer’s Association and nuclear medicine experts, which call for PET scans only in cases of unexplained or unusual symptoms and unclear diagnoses.... But as evidence mounts that brain damage from Alzheimer’s begins years before people develop symptoms, worried patients and their families may start turning to PET scans to learn if they have this biomarker."  These tests are expensive and "[a]myloid plaques occur commonly in older people’s brains, but not everyone with amyloid will develop dementia, which probably involves multiple factors. Nor does a negative PET scan mean someone won’t develop dementia."

There's a lot of research being done and we all owe a big thank you to the researchers fighting this and all the other diseases out there that threaten us as we age.