Elder Law Prof Blog

Legislation to Raise Required Minimum Distribution Age to 75

Last week CNBC ran this story: New retirement bill has perks for seniors, student loan borrowers. Here are the key points from the story

• A new, bipartisan bill would raise the age for required minimum distributions from accounts like 401(k)s and IRAs to 75, from 72.

• It would also let workers repaying student loans to get a company 401(k) match even if they’re not saving in their workplace plan.

• The Securing a Strong Retirement Act of 2020 was proposed Tuesday by Rep. Richard Neal, D-Mass., and Rep. Kevin Brady, R-Texas.

Here's the news story "The legislation, proposed by House lawmakers on Tuesday, raises the age for starting RMD from 72 to 75.  The bill, the Securing a Strong Retirement Act of 2020, is available here.

Thanks to my colleague and friend Professor Feeley for sending me the story.

 

More on Nursing Homes & Federal $

Earlier this week I posted about the nursing homes seeking additional $ from the federal government because of the number of COVID 19 cases. I thought this article in TIME magazine, COVID-19 Is Still Devastating Nursing Homes. The Trump Administration Isn't Doing Much to Stop It, provided a nice follow up.

Ar least 75,000 Americans in nursing homes and other long-term care facilities have already died from COVID-19—and the devastation is far from over. After a decrease earlier this summer, the death toll is now rising once again, and as the country heads into the fall and then flu season, millions of Americans who require institutional long-term care remain at the greatest risk.

But, so far, the Trump Administration has talked a big talk—and mostly failed to deliver.

There have been issues with the amount and quantity of the PPEs sent to facilities, CMS hasn't ensured that SNFS will have s sufficient supply of COVID test kits and there was nothing specific for SNFs in the latest relief package. The article discusses the lack of a coordinated federal response and what assistance is provided comes with new requirements. For example,  as pertains to the new testing requirements:

The Administration’s new testing schedule assigns counties to “green,” “yellow” or “red” categories based on their rate of positive COVID-19 tests, and requires that nursing homes test their staff as often as twice weekly depending on the severity of their location. They must also test all residents during any outbreak or whenever a new COVID-19 case is identified. Facilities can face steep fines if they don’t comply and must keep up with testing to receive Medicare and Medicaid reimbursement, which are the industry’s main source of income.

So why is this problematic? The article offers this insight

Those requirements are fine in theory, industry experts say, but they don’t reflect the reality on the ground. If nursing homes test at the required frequency, the supply of free tests provided by HHS will run out rapidly. Long-term care facilities, which are often financially stretched, will be required to purchase more tests on their own.

There is also concern about the sustainability of the current model of nursing home care and notes the problem with adequate staffing.

The staffing issue is even thornier. Nursing homes typically operate on thin margins, and long-term care workers—mostly poor women of color—are underpaid and overworked in the best of times. During the pandemic, staffers have been falling ill themselves, staying home to care for family members or children who are attending school remotely, and leaving the field for less dangerous jobs. While Congressional Democrats pushed for hazard pay for frontline workers this spring and included it in their relief bill that passed the House in May, no federal plan has been approved. Without specific money dedicated to worker salaries, long-term care facilities say they can’t hire the staff they need.

 

COVID 19 and Dementia

COVID-19 has hit residents of nursing homes hard.  But it’s also hit hard those with dementia.   Dementia deaths rise during the summer of COVID, leading to concern was published recently in The Conversation. The article opens with this sobering observation

Deaths from dementia during the summer of 2020 are nearly 20% higher than the number of dementia-related deaths during that time in previous years, and experts don’t yet know why. An estimated 61,000 people have died from dementia, which is 11,000 more than usual within that period.

“There’s something wrong, there’s something going on and it needs to be sorted out,” Robert Anderson, chief of mortality statistics at the U.S. Centers for Disease Control and Prevention, said in a recent interview with Politico. “This is highly unusual.”

The author analyzes the four factors that may have played a role in the deaths of these individuals. Those include social isolation (“[s]ocial isolation, which essentially is little or no contact with others, is the last thing seniors with dementia need. But it’s what many have received, as caregivers are forced to limit visits during the pandemic”), caregiver burnout (“during COVID-19, caregivers have been isolated too. What help they had from the outside is now probably gone. Burnout becomes more likely”),  decreased access to medical care (“[f]or dementia patients, accessing care may even be more problematic. Telemedicine, often an option for other patients, may not be manageable for those with dementia”), and staying home or using the health care offered by the facility, when they’ve decided the risk of leaving the house is greater than the medical issue (“a good example of something we doctors call goal-concordant care: when doctors understand a patient’s health goals, and then provide them with the best they can within the scope of those goals”).

The author concludes with some advice: check on the folks with dementia whom you know, check in on the caregiver…and be a good listener, and talk to your family about your wishes if this becomes your future.

Thanks to Professor Naomi Cahn for sending the link to this article.

NPR aired a timely podcast on nursing homes seeking federal government funding do to the increased number of COVID cases. For-Profit Nursing Homes' Pleas For Government Money Brings Scrutiny explains that

Nursing homes have been overwhelmed by the coronavirus. Residents account for more than a quarter of all COVID-19 deaths nationwide. The industry says that facilities have also been overwhelmed by costs, and they're asking for billions in aid from the federal government… But recent studies suggest that for-profit ownership may have endangered residents by skimping on care, while funneling cash to owners and investors.

The article highlights some facilities that have had issues and focuses on the for-profit business model.  “Studies looking at thousands of nursing homes across the country have connected for-profit ownership and low nurse staffing to increased coronavirus infections.

The nursing home industry rejects those studies and promotes earlier research that concluded that outbreaks are largely caused by community spread of COVID-19 outside of nursing homes.”  With residency numbers declining but costs increasing, nursing homes are facing another hurdle. And they are seeking money from the feds. “Nursing homes have already received about $7.5 billion from federal coronavirus relief legislation and billions more in Paycheck Protection funds. Now the industry is asking for another $100 billion for all health care providers, with a "significant" amount of that going to nursing homes.”

You can listen to the accompanying podcast by clicking here to access it.

Weakened Memory Recall: Leading to Remembering?

Scientific American ran an article, Helping Alzheimer’s Patients Bring Back Memories Targeting recall processes could let people who are in the disease’s early stages access what they currently can’t remember.

People of all ages have moments when it feels like we’re on the edge of recalling something but can’t quite do it—where we parked our car or left our phone, for example, or what name goes with that familiar face. It’s extremely frustrating in the moment, but for most of us, we can usually remember if we try. For patients with Alzheimer’s, Huntington’s and many other dementia-causing diseases, however, memory loss is much more profound.

The article discusses two theories regarding memory loss: “one is that these patients can’t store new information properly in the brain; the other is that their ability to recall stored information has been weakened.”   The author discusses his research and how that led him to support the “weakened memory recall idea.”

The author uses great analogies to help the reader understand the science of the disease and the work. The author notes that there is a lot yet to know, “but what’s clear is that we need to take advantage of targeting recall to help treat patients in the near future.” 

Thanks to my colleague and friend, Professor Feeley, for sending me this article.

Inspirational Story of Voting

Last week I posted a blog about the ability of folks with dementia to vote. On the subject of voting, here’s a poignant story that appeared in the Washington Post.  One last vote: In Michigan, a terminally ill man’s mission to cast a ballot tells the story of a terminally ill individual whose last wish was to live long enough to vote in this election. He made it to the first day of early voting, even depositing his completed ballot himself in the official drop-off box for the ballots. Slightly over a week later, he died.  After his death, it was learned that his vote didn’t count because in his state the votes, even those cast early, are not counted until election day.  His son’s words can be taken to heart: “It’s not that he thought his vote was going to change the election. He believed it was important as an example to his children and grandchildren,” he added. “The way you use your energy, particularly when you don’t have much left, that is a very true reflection of what you really care about.”

Forgetting a Word Doesn't Mean Dementia

Ever find yourself saying, "what was their name again? It's on the tip of my tongue."  Then do you worry that you have dementia because you can't remember the word? The Washington Post tackled this in a recent article,  Dementia is more than occasionally forgetting a name or a word.

First, it is important to know that dementia cannot be diagnosed from afar or by someone who is not a doctor. A person needs a detailed doctor’s exam for a diagnosis. Sometimes, brain imaging is required.

And, forgetting an occasional word — or even where you put your keys — does not mean a person has dementia. There are different types of memory loss and they can have different causes, such as other medical conditions, falls or even medication, including herbals, supplements and anything over-the-counter.

There is normal age-related memory loss, and the article emphasizes that such memory loss is normal! Let’s distinguish from memory loss that is not normal---“forgetting the name of someone you see every day; forgetting how to get to a place you visit frequently; or having problems with your activities of daily living, like eating, dressing and hygiene….When you have troubles with memory — but they don’t interfere with your daily activities — this is called mild cognitive impairment. Your primary care doctor can diagnose it. But sometimes it gets worse, so your doctor should follow you closely if you have mild cognitive impairment.”

The article offers the CDC's  quick bullet-point list of warning signs for specific domains when forgetfulness is more than just normal age-related memory loss:

• Memory.
• Attention.
• Communication.
• Reasoning, judgment and problem solving.
• Visual perception beyond typical age-related changes in vision.

Although Alzheimer’s is the dementia that most often comes to mind, the article reminds us that there are several types of dementia.  The article provides a good overview of the issues that arise from dementia and concludes with this thought-provoking observation:

But even more frightening is unrecognized or unacknowledged dementia. You must, openly and honestly, discuss changes you notice in your memory or thinking with your doctor. It’s the first step toward figuring out what is happening and making sure your health is the best it can be.

And, as with any disease or disease group, dementia is not a “character flaw,” and the term should not be used to criticize a person. Dementia is a serious medical diagnosis — ask those who have it, the loved ones who care for them or any of us who treat them.

Retirement Post-COVID. A Conversation with Ken Dychtwald

The New York Times recently ran an article, Rethinking Retirement,  that is a conversation with Ken Dychtwald.

When someone retires, three substantial changes take place, said Ken Dychtwald, psychologist, gerontologist and founder and chief executive of Age Wave, a consulting and research company.

“They struggle with their identity, relationships and activity,” he said. “Some people feel unsettled, anxious or even bored, but eventually they realize that relationships, wellness and purpose really matter — perhaps more than ever.”

The reporter asked him if his views of retirement have changed due to his turning 70 and COVID. The short answer-yes. One statement he made resonated with me: "The pandemic this year has given many of us an enormous appreciation for the preciousness of life. I’ve come to realize that I’d like to be useful more than youthful." He notes that many individuals who are retired have made "themselves irrelevant"  while recognizing staying relevant takes time and effort.

He responds to several interesting questions, the last of which is notable

What is the biggest mistake retirees make?

Far too many think far too small. I have asked thousands of people from all walks of life over the years who are nearing retirement what they hope to do in retirement. They tell me: “I want to get some rest, exercise some more, visit with my family, go on a great vacation, read some great books.” Then most stall. Few have taken the time or effort to study the countless possibilities that await them or imagine or explore all of the incredible ways they can spend the next period of their lives.

The Future of Long Term Care Facilities Globally, Post-COVID

The Washington Post recently published an article examining the future of long term care facilities around the world, As covid-19 cases surge, global study paints grim picture for elder-care homes.

There are few easy lessons. In many countries, the trend is hard to escape: The larger the coronavirus outbreak in an area, the more deaths elder-care facilities there can expect to see, according to the results of an ongoing transnational research project, which published new data this week.

Across 26 countries, elder-care home residents have accounted for an average of 47 percent of recorded coronavirus deaths, according to data collected by the International Long-Term Care Policy Network, a global collaboration between academics and policymakers.

With the cases rising again, will the death toll in facilities rise as well? We know that residents of SNFs are more frail, but what causes such a high death rate is the subject of ongoing research according to the article. Because of the lack of or variations in data with various countries, "[t]he only true metric for understanding the impact of covid-19 on elder-care homes is to look at the total number of deaths among residents and compare the change over previous years, but that data is rarely published...."

Countries tried various approaches, some with success, some without.  But what works? "[I]t can be hard to isolate tactics that work. In some facilities in Spain and Britain, having staff live on site and submit to frequent testing appears to have helped keep the virus out. In the United States, rapid response teams that isolate patients and take them to hospitals have been helpful in limiting the virus’s spread."  Tactics don't come without tradeoffs, however. For example, restricting visitation may protect residents but the isolation has a negative impact.

Will there be significant and long-lasting changes to the way we provide long-term care?  "Elder-care facilities may see significant changes — and not just in the short term. The International Long-Term Care Policy Network predicts higher costs and lower demand for elder-care services may not be a blip but could last for 'many years to come.'"

Can Individuals with Dementia Vote?

The New York Times reported recently on a hot topic with the upcoming election: whether an individual with dementia can still vote. Having Dementia Doesn’t Mean You Can’t Vote "tells us that for some, voting is still possible. The key, "he ability to express a preference," citing to a new report from experts on this topic.  Even though the person has the right, the exercise of that right may be challenging: "[v]oting can become challenging for many older citizens, who may struggle to reach polling places, stand in lines, use computerized voting machines or read ballots printed in small type."

Further, the article notes, many believe they cannot help the voter in casting the ballot. "A diagnosis of cognitive impairment does not bar someone from voting. Voters need pass no cognitive tests. They don’t have to be able to name the candidates or explain the issues. If they need help reading or physically marking the ballot, they can be assisted, either at the polls or with mail-in ballots. In some states, even people under court-appointed guardianship don’t lose their voting rights."

So you want to help. What do you do? "If you are considering helping someone with dementia to participate in an election, and they have registered to vote, in most cases there are only two real guidelines to keep in mind.

1. "After reminding the person that Election Day is nearing, ask whether he or she would like to vote." If the answer is no, you are done.
2. If the answer is yes, then "you may read the voter the ballot choices, if he or she cannot read them, but cannot provide additional information or interpretation, although discussions before voting begins are permitted. “Ask them their choices and see if they answer,” ...  “If they do, they vote.”

Even in normal times, there are challenges for those who need help with voting, for examples residents of SNFs.  In the time of COVID, the challenges are even greater.  The article is really interesting and I encourage you to read it.  The study findings can be accessed here.

Retiring and Starting a Business for Elders

The New York Times ran a recent story about elders who retired after a long career and then went into business for themselves with elders as their target clients. As They Aged, They Started Businesses for People Like Them, describes these "older entrepreneurs ... [as]  turning their lifelong skills into encore careers selling services and products in the booming senior consumer market. In some cases ... their own experiences become catalysts for career moves at a time when others are retiring."  The article notes the confluence of two factors driving this trend: the "longevity market and the increasing amount of these "later-in-life entrepreneurs."  The article offers some insights regarding the shift to becoming a late-in-life business person and the types of businesses that lend themselves to this model.  Check it out!

Webinar: Tools for Financial Caregivers

The Consumer Financial Protection Bureau  and the National Alliance for Caregiving are offering a free webinar on Tuesday, October 20 at 2 p.m. eastern on Tools for Financial Caregivers of Older Adults.

The Consumer Financial Protection Bureau (CFPB) and the National Alliance for Caregiving (NAC) will provide a free webinar on Tuesday, October 20, 2020 from 2-3 pm ET. NAC will share findings from its joint study with AARP on caregiving, including ways financial strain can affect caregivers and older adults. The CFPB will share free resources for financial caregivers of older adults, with an emphasis on tips and tools that can be used during the Pandemic to manage someone else’s money.

Presenters:

• Gabriela Prudencio – National Alliance for Caregiving

• Lisa Weintraub Schifferle – CFPB, Office for Older Americans

• Kate Kramer – CFPB, Office for Older Americans

Click here to register. You can download the corresponding report here.

Court Called Upon to Prevent Misuse of Law to Penalize Homeless People

As many of our regular readers know, I grew up in Phoenix, Arizona.  One of the developments I have followed over the years is the number of homeless residents of Phoenix.  I'm a cyclist in my spare time and one of my regular downtown bike routes in Phoenix takes me past an ever-growing encampment.  In addition, a large park near my parents' home now serves as a daytime gathering spot for many.  In the scorching heat of the summer, and the desert cold of the winter, there are more and more people without adequate shelter.  The New York Times recently pointed out that in contrast to historical statistics suggesting that nationwide, "elderly" persons make up a small percentage of the homeless population, in the last few years we are seeing a surge among older adults.  See Elderly and Homeless: America's Next Housing Crisis, a feature article published on September 30, 2020, that, in part, profiles the issues in Arizona.  

So, it was with great interest that I read a report on a federal appellate decision, limiting the ability of municipalities to use criminal laws to penalize individuals, in an attempt to discourage or remove people who are living on the streets.  The report is by one of  Dickinson Law's third year law students, Jacqueline Stryker.  She writes in part:  

"The city of Boise, Idaho attempted to fight homelessness in the community through a combination of its public camping ordinance and its disorderly conduct ordinance.  In Martin v. City of Boise, 920 F.3d 584 (9^th Cir. 2019), the 9^th Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from criminally prosecuting people for sleeping outside on public property when those people have no shelter.  The Court concluded that it does.  A municipality cannot criminalize people who sleep outside when no sleeping space is practically available in any shelter. "

Ms. Stryker observes in her conclusion, "Whether the decision of the Ninth Circuit in Martin will gain traction a local governments grapple with the growing problem of homelessness and homeless encampments is yet to be seen."

For more of Ms. Stryker's timely, concise case analysis, see:  Municipal Efforts to Combat Homelessness.

How Does Your State Rank in Providing Long Term Care Services?

Advancing Action, 2020: A State Scorecard on Long-Term Services and Supports for Older Adults, People with Physical Disabilities, and Family Caregivers ranks individual states on the available services, etc. Here's the introduction on this latest scorecard:

This report is a compilation of state data and analysis that is based on a vision of a high-performing system of long-term services and supports (LTSS). By using reliable, consistent, available data, it is designed to spark conversations that can result in actionable solutions at the local, state, and national levels—solutions that help older adults, people with physical disabilities, and their family caregivers live their best lives possible. Making that happen is the responsibility of both the public and private sectors, with advocates playing crucial roles. And consumers’ choices and actions ultimately affect a state’s LTSS system as well.

Of course, COVID changes everything and the introduction addresses that impact on the Scorecard.  The purpose of the scorecard

The 2020 Long-Term Services and Supports (LTSS) State Scorecard aims to empower state and federal policy makers, the private sector, and consumers with information they need to do the following:

• Effectively assess their state’s performance across multiple dimensions and indicators.
• Learn from other states.
• Improve the lives of older adults, people with disabilities, and their families.

The Scorecard is guided by the belief that, in order to meaningfully manage and improve performance, one must measure it. Unlike many other rankings that focus on a particular aspect of LTSS system performance, the Scorecard compares state LTSS systems across multiple dimensions of performance, reflecting the importance and interconnectedness each has on the overall LTSS system. The goal is to spark conversations, galvanize broad-based coalitions, and focus stakeholders’ attention on the factors that most directly impact consumers and their families.

Info on how to use the scorecard is available here.  Check out your state here in the full report!

The Aging of the US

According to AARP, The United States is an Aging Nation.

Here are the population projections they offer

1.    The National Median Age is 38.2 Years Old

2.   The Number of Older Adults Will Soon Outnumber Children

3. The 65+ Population Increased During the Past Decade

4. The Population of Older Adults is Getting Larger — and Older

Each of this incudes an interactive graphic that links to a separate page that provides more info about the statistic. The landing page for the projections is here.

New GAO Report: Retirement Security for Women

The GAO has released a new report, RETIREMENT SECURITY: Older Women Report Facing a Financially Uncertain Future. Here are the highlights:

In all 14 focus groups GAO held with older women, women described some level of anxiety about financial security in retirement. Many expressed concerns about the future of Social Security and Medicare benefits, and the costs of health care and housing. Women in the groups also cited a range of experiences that hindered their retirement security, such as divorce or leaving the workforce before they planned to (see fig.). Women in all 14 focus groups said their lack of personal finance education negatively affected their ability to plan for retirement. Many shared ideas about personal finance education including the view that it should be incorporated into school curriculum starting in kindergarten and continuing through college, and should be available through all phases of life.

Individual women's financial security is also linked to their household where resources may be shared among household members. According to the 2016 Survey of Consumer Finances, among households with older women, about 23 percent of those with white respondents and 40 percent of those with African American respondents fell short of a measure of retirement confidence, indicating their income was not sufficient to maintain their standard of living. The likelihood of a household reporting high retirement confidence rose in certain cases. For example among households of similar wealth, those with greater liquidity in their portfolio and those with defined benefit plan income were more likely to report high retirement confidence.

The full report is available here.

National Guardianship Ass'n Releases Guardian FAQ on COVID

The National Guardianship Association (NGA) has released a September 21, 2020 FAQ for guardians about the pandemic. Frequently Asked Questions by Guardians About the COVID-19 Pandemic.
Here are the top takeaways

• Contact with My Client or Loved One – Maintaining contact is essential, whether remotely or in person.
• Special Considerations for Nursing Home Residents – New federal guidance provides ways you can safely visit a resident in person. While there still may be some restrictions on in person visits, you have a responsibility to maintain contact and monitor well-being through remote access.
• Special Considerations for Residential Groups Settings and Hospitals – While there may be restrictions on in-person visits, you have a responsibility to maintain contact and monitor well-being through remote access.
• Protections and Services for My Client or Loved One in the Community – Maintain contact with your client or loved one in the community, and make sure he or she gets services and supports to maintain health and well-being.

• Access to Courts – Each state determines its own procedures during the pandemic. Courts have made many changes, including implementing or expanding remote hearings, and there may be changes in requirements for timelines, notices, and submission of reports.
• Protecting the Rights and Well-Being of My Client or Loved One – The rights of your client or loved one have not changed, but the pandemic makes it more difficult to exercise certain rights. Take actions to ensure the person receives fair health care treatment, facilities follow safety protocols, and support the individual during this difficult time.
• Protecting the Medical Decisions for My Client or Loved One – Work with health care
providers to ensure that the health care choices and values of your client or loved one are
respected.
• Protecting the Finances of My Client or Loved One – As guardian of the estate or conservator,
ensure that your client receives all COVID-19 and other benefits for which he or she is eligible; develop and implement a financial plan that is flexible enough to accommodate demands due to COVID-19; and manage investments and financial affairs with increased vigilance during the pandemic.
• Safety Precautions – Take steps to make sure you are not exposed to or transmitting illness, and to respond if your client or loved one is exposed to COVID-10, shows symptoms, or is hospitalized. Be alert to COVID-19 frauds or scams.

The 20 page FAQ with detailed explanations is available here.

New Fact Sheet from National Center on Elder Abuse

The National Center on Elder Abuse has released a new fact sheet,  Communicating with
People with Limited English Proficiency. Here are a few of their tips:

We encourage the use of these best practice tips to aid your communication efforts:
• When anticipating a need to hire a new role on your team, screen for bilingual or multilingual candidates.
• Identify members among your team who speak other languages who you know can assist with outreach when connecting with people who speak different languages.
• Establish a list of translated basic phrases, such as “Do you speak English?”.
• If someone is contacting you by phone and has reception issues (Are they trying to reach you from somewhere remote or out of the country?), try to obtain as much information as possible to contact the person back, in the hopes of establishing a clearer second communication attempt.
• For people requesting information with language barriers or who may be hard-of-hearing, slow down your speaking pace, pronounce words clearly, and repeat phrases when necessary.

The full list of tips is available here.