Elder Law Prof Blog

Ann F. Baum Memorial Elder Law Lecture

Happen to be in the vicinity of the U. of Ill. School of Law on Monday? If so, be sure to stop by to listen to the Ann F. Baum Memorial Elder Law Lecture at noon est.  The speaker is  Omri Ben-Shahar - University of Chicago Law School who will speak on Personalized Elder Law.

 

Harder to Get Home Health Care?

We already know about the family caregiver shortage. Now Kaiser Health News tells us it's harder for Medicare beneficiaries to get home health care. Why Home Health Care Is Suddenly Harder To Come By For Medicare Patients explains the why, "home health agencies across the country are grappling with a significant change as of Jan. 1 in how Medicare pays for services. (Managed-care-style Medicare Advantage plans have their own rules and are not affected.)"

The article reports the results of this change, and how it's affecting beneficiaries: "[a]gencies are responding aggressively, according to multiple interviews. They are cutting physical, occupational and speech therapy for patients. They are firing therapists. And they are suggesting that Medicare no longer covers certain services and terminating services altogether for some longtime, severely ill patients."

This next section explains the before and after of payments:

Previously, Medicare’s home health rates reflected the amount of therapy delivered: More visits meant higher payments. Now, therapy isn’t explicitly factored into Medicare’s reimbursement system, known as the Patient-Driven Groupings Model (PDGM).

Instead, payments are based on a patient’s underlying diagnosis, the presence of other complicating medical conditions, the extent to which the patient is impaired, whether he or she is referred for services after a hospitalization or a stay in a rehabilitation center (payments are higher for people discharged from institutions) and the timing of services (payments are higher for the first 30 days and lower thereafter).

CMS is keeping an eye on the impact of this change, so pay attention to this issue.  It's important!

What's in a Name? A Lot-As We Know.

I talk to my students about the vocabulary of aging, and what to call clients. (We have also been talking about "Okay Boomer").  One student sent me this great article from The Atlantic, When Does Someone Become ‘Old’?It’s surprisingly hard to find a good term for people in late life.

Of course, calling someone old is generally not considered polite, because the word, accurate though it might be, is frequently considered pejorative. It’s a label that people tend to shy away from: In 2016, the Marist Poll asked American adults if they thought a 65-year-old qualified as old. Sixty percent of the youngest respondents—those between 18 and 29—said yes, but that percentage declined the older respondents were; only 16 percent of adults 60 or older made the same judgment. It seems that the closer people get to old age themselves, the later they think it starts.

Overall, two-thirds of the Marist Poll respondents considered 65 to be “middle-aged” or even “young.” These classifications are a bit perplexing, given that, well, old age has to start sometime. “I wouldn’t say [65] is old,” says Susan Jacoby, the author of Never Say Die: The Myth and Marketing of the New Old Age, “but I know it’s not middle age—how many 130-year-olds do you see wandering around?”

The article discusses the meaning of hte word "old" when applied to people,  the meaning  we already know.... According to the article, it appears as though we are moving to the use of the word "older"

So if 65-year-olds—or 75-year-olds, or 85-year-olds—aren’t “old,” what are they? As Jaffe’s phrasing suggests, American English speakers are converging on an answer that is very similar to old but has another syllable tacked on as a crucial softener: older. The word is gaining popularity not because it is perfect—it presents problems of its own—but because it seems to be the least imperfect of the many descriptors English speakers have at their disposal.

The article reviews other words we often use, such as elderly, senior and words of that ilk, and their lack of precision, or negative connotations.  With this trend toward older as a modifier, we will probably start seeing the use of older person, older adult, older individual. But couldn't we use people-first language, using adult who is older, individual who is older, etc.?   Why does there seem to be some consensus around the word "older"?  I was amused by this:

Older may be catching on because it seems to irritate the smallest number of people. Ina Jaffe, the NPR journalist, found early on in her reporting on old age that people had strong reactions to the existing linguistic palette. Several years ago, curious to get a better sense of which terms people liked and which they didn’t, she helped arrange a poll on the NPR website soliciting opinions. Older adult was “the winner … though you can’t say there was any real enthusiasm for it among our poll takers. Just 43 percent of them said they liked it,” she explained on air. Elder and senior had roughly 30 percent approval ratings.

Another solution is to use an age range to refer to a person, such as "people age 50 and up".  The article is excellent and I'm assigning it to my students.  Take a look and see what you think. Oh and how about this, can we describe members of this cohort just as people?

Prospective Residents Need More Info About ALFs

Friend and colleague, Professor  Naomi Cahn sent us this story. In the article,  Incomplete and inadequate: Information lacking for seniors looking for assisted living, early on the authors explain the reasons for their research:

We and our colleagues track the ever-changing circumstances of long-term care in the U.S. As we study policies and practices, we have observed that the expansion of assisted living is clearly a game-changer, creating new challenges in the industry. Many states have increased assisted living regulation in recent years. Some consumer advocates have called for nursing-home style federal rules, though others oppose this, saying assisted living should remain flexible enough to serve residents with a range of needs, from personal care only to end-of-life comfort.

Now we know why they did the research, here's what they did: "Using criteria formulated from prior research, along with information provided by some states, we examined 39 key elements of each website. Those elements included the size of the facility, cost, license status, the insurance it accepts, and any special services offered, such as memory care. We also looked at each website’s usability – the ease in finding critical information."

The article reports they found gaps in provided info, websites that they thought were difficult to navigate although they found some websites that had better info and were easier to use. "True, the state websites are better than they were 15 years ago. But they are less than what they should be. Many of the elderly, the disabled, and the families who love them require more to make appropriate choices. When navigating the internet, the principle of “buyer beware” should not be the driver."

Sneakers for Mom---With GPS Tracker

One of my students sent me the recent article about sneaker insoles with built-in GPS. I always talk to my students about the various technologies, including tracking devises, and ask them to think about autonomy, privacy, consent, and product reliability.  Shoe with GPS insole lets you track loved ones with Alzheimer's or dementia explains how the device works, the info provided and the real-time data provided (in this case, the article notes the product updates the data every 5-10 minutes).  One customer was quoted along the lines that the use of the product allows her mom to wander, but that the daughter can catch up to mom, before harm befalls mom.  I was thinking about this.... it still allows mom to be mobile but I still would like to think more about privacy, data security, consent and more. This, of course, is not the only type of tracking device available to families who have elders who may wander. I've not had any experience with them, but on its face sounds like it may allow the elder to stay at home or have some freedom. (but what can happen before the location is updated or the family even checks for an updated location). Anyone have experiences with any tracking devices for elders who wander?

Wall Street Journal: Articles on Self-Neglect & Family Caregivers

The Wall Street Journal (subscription required) this week ran 2  stories that caught my eye for this blog. First, my friend and colleague Professor Bauer sent me this article: Growing Risk to America’s Seniors: Themselves focuses on the issue of self-neglect.  Here's a brief excerpt

Self-neglect cases involved 144,296 people across the country, accounting for more than half the reports of alleged elder abuse or neglect investigated by adult protective services programs in 2018, according to a new report released by the Department of Health and Human Services. That was more than the next five most numerous categories—neglect, financial exploitation, emotional abuse, physical abuse and sexual abuse—combined.

The federal government doesn’t have comparable data for previous years, but several state and local service providers say they are seeing the self-neglect problem swell, stretching their resources. Virginia’s county and city programs, for example, investigated 18% more self-neglect cases in 2019 than in 2015. In the District of Columbia, such cases rose by 60% between fiscal years 2016 and 2019, according to the D.C. Department of Human Services. Iowa saw a 55% increase between fiscal years 2017 and 2019, while Ohio counted 19% more between fiscal years 2014 and 2019, according to state officials.

Next, a story focusing on the sandwich generation, offers poignant views of adult children's plight, ‘I Feel Very Torn Between My Child and My Dad’—Demands Intensify for the ‘Sandwich Generation’.

"New demographic forces are redefining what it means to be a “sandwich-generation” caregiver. Women are having children later in life. Longevity—and, with that, the incidence of dementia—is increasing. Families are smaller, and two-career couples are more common. All these trends are converging and intensifying the demands on those caring for generations on either side of them."

...

Now, most of the people in this type of caregiving role are in their 30s, 40s, and early 50s, according to a 2019 study by the National Alliance for Caregiving and Caring Across Generations. Two-thirds of them have jobs, and on average work 36 hours a week and devote 22 hours a week to caring for an adult, in addition to raising children, according to the study.

Often, responsibility for care is falling on them because their boomer parents are more likely to be single than those in previous generations, without a spouse to pitch in. The proportion of those caring for their parents as well as children under the age of 18 doubled to 26% in 2015 from 12.6% in 1999, a 2017 study showed. But even as more of these caregivers step up, it may not be enough.

SSA Fighting SSA Fraud

For those of us who have ever been victims of a fraud that involves your Social Security benefits, we know it's a serious pain (speaking from personal experience).  Protecting all of your personal info is so important. To help beneficiaries, SSA has released a new PSA for beneficiaries. Social Security Launches New Campaign to Fight Scammers explains:

Recently, we launched a new Public Service Announcement campaign as our latest step to caution you about the ongoing nationwide telephone impersonation scheme. The videos feature a message from our Commissioner, Andrew Saul. Along with our Office of the Inspector General, we continue to receive reports about fraudulent phone calls and emails from people falsely claiming they’re government employees. The scammers play on emotions like fear to convince people to provide personal information or money in cash, wire transfers, or gift cards. Fraudsters are also emailing fake documents in attempts to get people to comply with their demands.

“I want every American to know that if a suspicious caller states there is a problem with their Social Security number or account, they should hang up and never give the caller money or personal information. People should then go online to report the scam call to Social Security,” said Commissioner Saul.

The PSA is available here. Watch it!

Don't Miss This Webinar: Public Charge and Elder Immigrants

Do you know about the Public Charge and Elder Immigrants issue? Justice is Aging has a webinar scheduled on this for March 9, 2020 at 2-2:30 eastern time..  Here's the info from the announcement.

Public Charge and Immigrant Seniors

In January, the U.S. Supreme Court removed the nationwide temporary injunction that had prevented the Department of Homeland Security (DHS) public charge immigration rule from taking effect. This means that the public charge rule that DHS finalized last August can go into effect nationwide, except in Illinois, where it is blocked by a statewide injunction. DHS announced that it will begin implementing the final rule on February 24th.

The Supreme Court’s decision endangers the health and well-being of older immigrants and their families and cruelly impedes the path to citizenship and family unification. However, it is not a final decision and we must continue to fight to stop this harmful policy from becoming permanent. The multiple cases challenging the underlying legality of the final public charge rule will continue in the courts. DHS has appealed all the district court decisions that issued preliminary injunctions to the Second, Fourth, Seventh, and Ninth Circuits. DHS has also asked the U.S. Supreme Court to hear the case.

Justice in Aging and our partners have filed amicus briefs in the Second and Ninth Circuits to ask the court to affirm the district courts’ nationwide injunctions and to highlight the ways in which this rule unfairly targets older immigrants, their families, and caregivers. This webinar, Updates on Public Charge & Older Immigrants, will begin with an overview of the public charge test and how it applies to older adults, discuss the current state of litigation, and provide information on what advocates need to know about the rule’s implementation.

Who should participate:
Aging and legal advocates, advocates serving immigrant communities, community-based providers, and others wanting to learn more about how changes to the public charge test and implementation of the new regulations impact older immigrants.

To register for the webinar, click here. More info about this issue is available from Justice in Aging here.

 

Yet Another Arbitration Case

My daily news feed from Bloomberg Law contained an article about a recent case. Here's a quick excerpt from the article,  Son’s Signature Didn’t Bind Nursing Home Resident to Arbitration:

An Arkansas nursing home resident’s representative won’t be forced to arbitrate medical negligence and breach of contract claims against the facility because neither the resident nor her representative signed an arbitration agreement, a state appeals court said.

The Arkansas Court of Appeals affirmed a lower court’s denial of Hickory Heights Health & Rehab LLC’s motion to compel arbitration of claims brought on behalf of Mary Young. Young’s son signed an arbitration agreement along with an admissions agreement when Young first entered Hickory Heights, the court said. But his signature wasn’t binding because he wasn’t Young’s designated representative at the time, it said.

The result is somewhat unusual, as arbitration clauses are favored under both state and federal law. But, as the court noted, arbitration agreements are contracts and may be invalidated by any generally applicable contract defense, such as invalidity.

The case is Hickory Heights Health & Rehab, LLC v. Taylor, 2020 Ark. App. 98 (2020).

Nation's Top 10 Frauds vs. Elders per the Senate Committee of Aging

The Senate Special Committee on Aging has released a new publication that updates us on frauds vs. elders. The intro to  Fighting Fraud:Senate Aging Committee Identifies Top 10 Scams Targeting Our Nation’s Seniors explains

,It is estimated that older Americans lose a staggering $2.9 billion a year to an ever-growing array of financial exploitation schemes and scams. They are being targeted by criminals who want to rob them of their hard-earned retirement savings. They are being exploited by strangers over the telephone, through the mail, and online. Worse yet, far too many seniors may also be targeted by family members or by other people who they trust. The U.S. Senate Special Committee on Aging is committed to protecting older Americans against fraud and to bringing greater awareness of this pervasive problem. The Committee maintains a toll-free Fraud Hotline: 1-855-303-9470. By serving as a resource for seniors and others affected by scams, the Hotline has helped increase reporting and awareness of consumer fraud. Additionally, Committee staff and investigators who operate the Fraud Hotline can provide callers with important information to help reduce the likelihood that they will become a victim.Over the past year, more than 1,300 individuals all across the country contacted the Fraud Hotline. Since the Fraud Hotline’s inception in 2013, more than 9,500 individuals from all 50 states have contacted the Committee’s Fraud Hotline to report a possible scam. The Committee would like to thank the many consumer advocacy organizations, community centers, and local law enforcement officials that have provided invaluable assistance by encouraging consumers to call the Fraud Hotline to document scams. We look forward to building upon our successful efforts to investigate and stop scams aimed our nation’s seniors, and to ensure that federal agencies are aggressively pursuing the criminals who commit these frauds.

I know you can't wait to learn which are the top 10 scams. Here you go!

Top 10 Most-Reported Scam sFrom January 1, 2019, through December 31, 2019, the Senate Aging Committee’s Fraud Hotline received a total of 1,341 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report account for more than 70 percent of the complaints.

Rank   Type of Scam   # of Complaints

1   Social Security Impersonation Scam  371

2     Robocalls / Unsolicited Phone Calls         123

3   Sweepstakes Scam/Jamaican Lottery Scam 107

4    Romance Scams                          99

5    Computer Tech Support Scams 93

6   Grandparent Scams                                 51

7    IRS Impersonation Scam                               34

8   Identity Theft                                                    27

9  Debt Scams                                                  21

10 Elder Financial Abuse18

The full report is available here.

Catholic Hospital Says No to Patient Request for PAD

Last week Kaiser Health News ran this story, Terminally Ill, He Wanted Aid-In-Dying. His Catholic Hospital Said No.

Even as an increasing number of U.S. states have legalized aid-in-dying laws, exercising that option is challenging for patients in a country where most large hospital systems have deep religious ties and the religious right is powerful. One in 6 hospital patients is now cared for at a Catholic hospital, according to the Catholic Health Association. Aid-in-dying is a legal right, but desperate patients are often left feeling they are doing something terribly, morally wrong.

The patient resides in Colorado, which has had their PAD law since 2016. We had blogged previously about the hospital when it fired a doctor "for consulting with [the patient who is the subject of this article], with the aim of carrying out his wishes."  "[T]he practice [is regarded] as “intrinsically evil,” citing the firm’s governing rules, the Ethical and Religious Directives for Catholic Health Care Services. The hospital has barred its doctors from following the state law."

Despite the small increments in the number of states that have legalized PAD, "[e]ven when the practice is legal, it often isn’t accessible. Some doctors are barred from participating by their employers. Others refuse to do so. In some cases, the drugs themselves may be too expensive. A dose of Seconal, which was once the most commonly prescribed drug for the practice, can run more than $3,000. The government and some private insurers won’t cover it."

The article follows the patient's struggle to find another doctor to help him, and the path he followed as he made plans for his death.  The lawsuit filed by the doctor fired from the hospital has not yet been resolved, according to the article.

What Type of Multi-Generational Housing is Right For You?

Threr are a lot of choices.... The New York Times covered this in  this article: In They Wanted a Multigenerational Home in Brooklyn. Which Apartment Did They Choose?  the goal for the recently married couple with a baby on the way was to have a home where her parents could live with them. The article is interactive, after summarizing the 3 properties reviewed by the couple, the readers can select which property they would choose, and guess at the property actually chosen by the couple.  (I guessed wrong).  Check it out-and see if your reasoning is the same as the couple featured in the article.

Funding Opportunity for Recent Law Grad

The Borchard Center has announced the opening of its grants period for recent (or soon to be) law grads who seek a fellowship in law and aging.Here's the announcement

The Borchard Foundation Center on Law & Aging Invites Applications for  the 2020-2021 Borchard Fellowships in Law & Aging. Applications due April 1, 2020

 Fellowship Information

The Borchard Fellowship in Law & Aging offers the opportunity to carry out a substantial project related to law and aging in partnership with a host agency. Up to three fellowships are available to law school graduates interested in, and perhaps already in the early stages of pursuing, an academic and/or professional career in law and aging.

During the fellowship period, the Center’s director and former fellows are available to help fellows with the further development of their knowledge, skills, and contacts. A legal services or other non-profit organization involved in law and aging must supervise a fellow’s activities and projects. In addition to the fellow's planned activities and project (unless the fellow's project includes the provision of legal services), the fellow is encouraged to provide some pro bono direct legal services to older adults under appropriate supervision. A fellow is expected to provide the Center with monthly activities reports.

The fellowship is $54,000 and is intended as a full-time position only. The fellow’s sponsoring agency is responsible for providing employee benefits, employer’s FICA payment, administrative support, workspace, computer, telephone, and email access, and appropriate professional education program opportunities. Fellows may live and work where they choose in the United States. Fellows must be either U.S. citizens or legally resident in the U.S.

The twelve month fellowship period runs from July 1 to June 30 for those already admitted to the Bar and from not later than September 1 to August 31 for those who must sit for the Bar exam after law school graduation.

Fellows participate in conference calls and other planned activities with other current and former fellows to encourage networking. Former fellows who successfully complete the fellowship period may also participate in the Center’s Former Fellows Grant Program.

Examples of some activities and projects by Borchard Fellows:

• Working with an established legal services program to enable vulnerable, isolated, low-income seniors to age-in-place by addressing their unmet legal needs;

• Providing holistic services to older clients facing consumer debt and foreclosure-related concerns;

• Implementation of a courthouse project to help elderly pro se tenants achieve long-term housing stabilization through the interdisciplinary use of legal representation and social services, allowing more elderly tenants to “age in place” at home; 

• Development of mobile clinics to help Chinese-speaking elders improve their access to public benefits and health care;

• Development of a medical-legal partnership for low-income seniors;

• Development of legal services and informational materials to caregivers working on behalf of beneficiaries with cognitive impairment;

• Development of a non-profit senior law resource center providing direct legal services and public education;

• Development of an interdisciplinary elder law clinical program at a major public university law school;

• Development of a mediation component for a legal services program elder law hotline;

• Development of an interdisciplinary project for graduate students in law, medicine, and health advocacy to foster understanding and collaboration between professions;

• Development of training materials and statewide trainings for lawyers, judges and other court personnel, and social service providers on new comprehensive state guardianship laws;

• Development of legal services programs for older clients in consumer law and small claims matters, end-of-life matters, and in protection from financial and elder abuse for older clients whose first language is other than English;

• Development of free legal clinics for older clients in suburban areas;

• Development, administration, and interpretation of statewide senior legal hotline outcomes study;

• Organizing and/or attending national conferences on law and aging issues;

• Writing and publication of law review articles on law and aging issues;

• Writing and publication of state specific, consumer oriented handbooks on legal issues affecting older persons;

• Analysis of Medicare policies;

• Analysis of SSI non-disability appeals; and

• Teaching elder law and related courses at law schools where fellows reside.

 Application Process

Applications are due on April 1, 2020. Applicants must submit a completed online application including an information form, an explanation of the applicant’s planned activities and projects, a current curriculum vitae, a law school transcript, a letter of support from the proposed supervisor, and two other letters of support. All fellowship application information and the required online application are available between March 1, 2020, and April 1, 2020, at http://www.borchardcla.org/fellowship-program.

For further information, contact Mary Jane Ciccarello, Director, at [email protected].

Life Expectancy is Finally Up!

One of the many articles on this news is from the New York Times,    American Life Expectancy Rises for First Time in Four Years explains that "[l]ife expectancy increased for the first time in four years in 2018, the federal government said Thursday, raising hopes that a benchmark of the nation’s health may finally be stabilizing after a rare and troubling decline that was driven by a surge in drug overdoses.” The increase is very small (one month the article notes) but it may  represent an upswing although "demographers cautioned that it was too early to tell if the country had turned the corner with opioid overdoses, which have claimed nearly 500,000 lives since the late 1990s."  Crossing our collective fingers it's an actual upswing and not a blip.