Elder Law Prof Blog

Taking Grandma Home; But What Happens When Grandma Goes Back to the SNF?

Last week with Thanksgiving, some families took their elders from the SNFs to be home for the holiday.  But if grandma then goes back to the SNF, is she bringing a hitchhiker with her (COVID).  The Tampa Bay Times discussed this in their article a few days before Thanksgiving, Residents may leave Florida facilities for Thanksgiving, could bring coronavirus back reminds us that "[a]state executive order issued in October mandates that facilities allow residents to visit their families’ homes. Experts and advocates worry that the state has not simultaneously put in place more safety protocols."  Since the state doesn't require testing of residents,  so as residents return to facilities and aren't tested, we just don't know how this is going to play out.  "[T]he Florida Health Care Association ...  reminded its member facilities that families should take coronavirus precautions if they bring their loved ones home ...  [and while] not required, some facilities may test residents upon their return or isolate them,...  and all homes will screen residents for coronavirus symptoms and potential exposure."

And on a somewhat related note, the following story from Canada examines the situation of elders who were taken home at the beginning of the pandemic. Pulled from care homes during pandemic, these seniors thrived — highlighting 'urgent' need for change: expert, 

notes that some elders have improved when taken home, but the decision to do so has many things to consider, such as the family members' ability to provide the needed care. Two of the folks interviewed for the story express frustration with what they see as elected officials' failure to resolve the problems in long-term care.  

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

 

Health & Income Security Gaps For Older Americans of Color

This is not a happy article for the day after Thanksgiving-but it is a darn important topic.  The Conversation published this article, Nearly two-thirds of older Black Americans can’t afford to live alone without help – and it’s even tougher for Latinos explains that

Older Americans who want to live independently face serious economic challenges. Half who live alone don’t have enough income to afford even a bare-bones budget in their home communities, and nearly 1 in 4 couples face the same problem.

Those numbers add up to at least 11 million older adults who are struggling to make ends meet, a new analysis shows.

The numbers are worse for older people of color. Dramatically higher percentages of Black, Latino and Asian older adults live on incomes that don’t meet their cost of living, even with Social Security. That can mean skipping needed health care, not having enough food, living in unhealthy conditions or having to move in with family.

These disparities often reflect lifelong disadvantages that add up as people of color encounter structural racism and discrimination that shape their ability to buy property and save for the future.

The authors used some data available about elders "to measure the true cost of living for older adults. It tracks expenses for housing, health care, transportation, food and other basics, county by county. We paired the index with state-level income data to determine the percentage of people who don’t have enough income to cover their cost of living." The results show that "disadvantages people of color face can extend through their lifetimes and can pass on to future generations."  Not only is income security an issue, so is health security "[s]ecuring and protecting health into later life is also more challenging for many people of color."

The results also showed state by state variations. The article concludes with various recommendations:

Today’s older adults who are struggling financially can’t go back, but there are several ways to help them now:

• Policies can promote affordable housing and affordable health care, which represent the biggest components of older Americans’ budgets.

• Governments can promote mechanisms that allow people to keep working into later life, which allows people to continue generating income and building wealth, and also delays drawing down other income sources such as pensions or Social Security benefits.

• Social Security and Medicare — the foundations of a secure retirement for millions of Americans — are essential for these groups. Older people of color rely more heavily than their white counterparts on Social Security and are at heightened risk when these programs are threatened.

• Making sure government assistance programs such as SNAP benefits for food and housing subsidies are accessible to the people who need them can also help. Ensuring access includes providing information in multiple languages and hiring outreach workers who understand the population’s needs.

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

Medicare's Care Compare

Remember those cool tools on Medicare.gov that allowed you to compare nursing homes, doctors, hospitals and more?  They are being retired as of the end of the year, and replaced with Medicare's Care Compare. All the info about the various services are there-but located on one page. It's easier since you can go to any of the 8 compare services from one landing page, rather than hunting for each one from the Medicare.gov website. Here's what CMS has to say about this new website:

We’ve combined our 8 original provider compare sites, giving you one place to start finding any type of care you need. New features include updated maps, new filters that help you identify the providers right for you, and a clean, consistent design that makes it easier to compare providers and find the information that’s most important to you.

. . .

What can this tool do for me?

For people with Medicare or their caregivers who want to choose a Medicare provider (like physicians, hospitals, nursing homes, and others), this tool provides a single source search and compare experience, that lets you:

• Find information about providers and facilities based on your individual needs
• Get helpful resources to choose your health care providers
• Make more informed decisions about where you get your health care

The information here should be used with other information you gather about providers and facilities in your area. In addition to reviewing the information here, you should talk to your doctor, social worker, or other health care providers when choosing a provider.

. . .

Although the tool was created for people with Medicare in mind, many of the measures shown here apply to people who may not have Medicare.

 

Recent AP Report on Nursing Homes-It's Not Just About COVID

Last week I tweeted a link to an article from the AP about poor care in SNFs that wasn't due to COVID, Not just COVID: Nursing home neglect deaths surge in shadows. The National Consumer Voice for Quality Long Term Care wrote a response;  and their full statement is available here.

Consumer Voice has heard from hundreds of families whose loved ones have been harmed by neglect. Family members report that many residents have experienced significant physical decline, such as losing their ability to move, or sit up or stand up without assistance. Others no longer talk because almost no one has spoken to them since March. There are residents who have not been bathed nor had their teeth brushed for months, and residents who have been confined to their rooms -while missing their eyeglasses and hearing aids. One resident sat in her room with a fractured hip for a month – the result of a fall and lack of medical attention, despite complaints of pain for weeks. Weight loss, bed sores, infections, and cognitive decline are ravaging nursing home residents. Much of this suffering could have been prevented.

The statement called on Congress for changes, including '"[ensuring] adequate numbers of well-trained and well-compensated staff. ... [and] [opposition of] any kind of immunity from civil liability for nursing homes" They also called on CMS to "[i]ncrease oversight of resident care ... [and] [r]equire facilities to permit family to conduct compassionate care visits."

Changes to Social Security for Those Still Working?

A little over a week ago, the Motley Fool ran this article, Working and Collecting Social Security? Big Changes May Be on the Way in 2021. The article opens discussing the importance of Social Security to recipients. "Without this guaranteed monthly benefit, the elderly poverty rate would be close to 40%, according to an analysis from the Center on Budget and Policy Priorities (it's under 9% with Social Security payouts)." For those who are working, there are changes coming, according to the article.

"Some choose to continue working, either part-time or full-time, while collecting their retired worker benefit from the program. If you're one of these people, or you expect to claim benefits very soon while continuing to stay employed in some capacity, you should be aware of a handful of changes expected to occur in 2021." 

The retirement earnings test amount (a formula that provides a deduction from SSA checks based on earnings amount for those who claim Social Security before reaching their full retirement age) is being increased (the article does a good job of explaining the earnings test).

Back in August the president issued an administrative order for a payroll tax deferral through the end of the year and for those who chose the deferral, 2021 is just around the corner when they have that bill coming due. Also in 2021, the payroll tax earnings cap will increase.  

The full article is available here. My thanks to my dear friend and colleague Professor Feeley for sending me the article.

Briefing Paper Advancing Guardianship Reform and Promoting Less Restrictive Options

The ABA Commission on Law & Aging released recently this paper, WINGS Briefing Paper
Advancing Guardianship Reform and Promoting Less Restrictive . Here are some highlights from the report.

The Administration for Community Living (ACL) awarded a grant to the American Bar Association Commission on Law and Aging (ABA Commission) to establish, expand or enhance state Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS)…

This briefing paper discusses the ABA Commission’s WINGS Project, its results, and its potential for positive changes. Specifically, it (1) describes the challenges of adult guardianship reform and the rationale for creating WINGS; (2) presents project findings and conclusions about WINGS; (3) discusses the potential for applying the CIP model to the adult guardianship system; and (4) makes recommendations for next steps in federal policy.

The ACL funding was awarded with the goal of testing whether WINGS is an approach that can advance guardianship reform to:

(a) avoid unnecessary and overbroad guardianship when less restrictive options are available, promoting self-determination; and

 (b) prevent, detect and address abuses in the guardianship system.

* * *

While the project WINGS, and indeed all state WINGS, have advanced adult guardianship reform, their modestly funded efforts are not enough to significantly improve outcomes for adults subject to, or potentially subject to, guardianship… Programs like WINGS should exist in every state under a national infrastructure with consistent, ongoing technical assistance and support… [T]he Commission on Law and Aging offers the following … Recommendations:

1. Recommendations for Federal Policy

ACL, in coordination with other federal entities, should provide funding to support the following recommendations:

1. Support WINGS Through Systems Change Grants

• Administer a five-year WINGS systems change grant initiative.
• Include programmatic requirements for monitoring guardians.
• Create a WINGS capacity-building/technical assistance entity.
• Support local or regional WINGS.

1. Take Steps Toward Establishment of a Guardianship Court Improvement Program

• Plan for establishment and implementation of a Guardianship Court Improvement Program. Pilot the program and support a capacity-building center.

• • Secure federal legislation with appropriations to implement and sustain a Guardianship Court Improvement Program.

The full report is available here.

Stan Lee: litigation over the last years of his life

I love the Marvel movies and always enjeoyed seeing the cameos of Stan Lee in the movies.  I'd heard stories about the last few years of his life.

The Last Days of Stan Lee: A heartbreaking tragedy about the (alleged) abuse of the Marvel Comics creator by those who swear they loved him opens with the telling of a video of Mr. Lee filmed at a Comic Con, followed a few days later by a story in another publication.  The article notes that almost 2 years after Mr. Lee's death, there are many unanswered questions and several cases pending in courts:

[A] half-dozen civil suits are pending and a criminal elder-abuse prosecution by the Los Angeles County District Attorney’s office remains mired in pretrial maneuverings. The courts have yet to shed light on many of the details and the veracity of the elder-abuse charges against several people. Elder-abuse cases are difficult to bring to trial, tough to litigate and hard to win. Was Stan Lee, like 1 in 10 Americans over age 60, a true victim of elder abuse, which can include physical violence, emotional torment, financial exploitation and willful deprivation? Plenty of evidence and testimony suggests that may be true.

The article details the decades of his career and his personal life. The article focuses on Mr. Lee's relationship with those close to him, including his daughter..  As the story wraps up, the writer tells us

THE LAWSUITS churn through the system. Delays give way to delays, and the accused sit mostly at home like the rest of us this year. As with so many elder-abuse cases, those involving the Lee estate will likely come down to “he said, she said.” Except, in this situation, there’s a three-ring circus of barkers and performers who may not have had Lee’s best interest at heart, in a charade that went on for years. Call it the long con, but “those types of relationships are much more difficult to pinpoint as being perpetrators,” said elder-abuse prosecutor Paul Greenwood. “I always say that the longer the victim and suspect have known each other, the more difficult it becomes to establish beyond a reasonable doubt that undue influence was exerted over that person, because sometimes loyalty is rewarded.”

In a less lawyerly explanation, the villain in this story is love. Abuse of the elderly routinely cloaks itself in love, which is, in many cases, returned by the victim. The perpetrators might even call love their motivation.

It will be a while before we know the full story (if ever). Stay tuned.

Dolly Parton-The Next Chapter of Her Life

Billboard published a recent feature on Dolly Parton. Dolly Parton Steers Her Empire Through the Pandemic—and Keeps It Growing! Now you may wonder why I'm blogging about Dolly Parton on the elderlawprof blog? Well, she's 74. But that's not why I thought this article was worth inclusion. The bulk of the article is about her life, her music portfolio, and her businesses.  Here's why:

Though there is an air of immortality to Parton, thanks to her immutable image and lyrics like “You’re never old unless you choose to be,” she and Nozell have spent the past few years preparing for a world without her. Unlike Prince or Aretha Franklin, who died without wills, Parton has worked to get her estate in order, and Nozell says that most decisions now are made with Parton’s legacy in mind. (Parton and Carl Dean, her husband of 54 years, have no children.) “I would not want to leave that mess to somebody else,” Parton says, before offering a little advice. “A word to all the other artists out there: If you haven’t made those provisions, do that. You don’t want to leave that mess to your family for people to have to fight over. You need to take care of that yourself, even if it’s a pain in the ass — and it is.”  

This is good advice for everyone-regardless of the size of their estates.  Take it from Ms. Parton-planning is important!

Stetson’s Journal of Aging Law & Policy Call for Papers

            Stetson’s Journal of Aging Law & Policy, the preeminent journal for cutting-edge issues of national and international aging law and policy, is seeking articles for its Volume 13, which will be published in May 2022. Stetson’s Journal of Aging Law & Policy is a unique journal with an elder law emphasis that also focuses on both law and policy.

            If you are interested in submitting an article for publication, please email Nicholas Marler, Managing Editor, at [email protected].  Submission requirements: Articles must be in 12-point font and double spaced. Citations should be in accordance with either the ALWD or BlueBook citation manuals and the article must be related to a relevant elder law topic. Submission preferences: The Journal seeks articles that are between 10,000 and 20,000 words. However, consideration may be given to articles that fall outside of this word requirement.

            Submissions and questions should be directed to Managing Editor, at [email protected]

 

Catching up on Nursing Home Articles

It's hard to keep track of all the articles coming out, most of which are about COVID and SNFs. There have been so many recently, I decided to just list them here.

COVID-19 Is Still Devastating Nursing Homes. The Trump Administration Isn't Doing Much to Stop It  (Sept. 11, 2020)

They Work in Several Nursing Homes to Eke Out a Living, Possibly Spreading the Virus (Nov. 2, 2020)

Judge says care home residents in England are legally allowed visitors (Nov. 3, 2020) (Thanks to my dear friend Professor Feeley for sending this to me)

Nontraditional nursing homes have almost no coronavirus cases. Why aren’t they more widespread? (Nov. 3, 2020)

40 Dead, Now 40 Laid Off: Inside a Nursing Home in Crisis (Oct. 29, 2020).

It has the highest death rate of any nursing home in the US. Families want to know why (Oct. 28, 2020)

Kansas nursing home faces severe federal penalties after deadly coronavirus outbreak (Oct. 27, 2020)

and finally, but maybe most significantly, this obituary,  Carter Williams, Who Unshackled Nursing Home Residents, Dies at 97 (Oct. 5, 2020).  Thank you Ms. Williams!

With the COVID numbers skyrocketing, I expect we will see more of these stories-and restrictions on visitation that have been previously lifted, are likely going to be imposed again.

Making DC More Dementia-Friendly?

My friend Morris Klein sent me this article a couple weeks ago (thanks Morris). Good urban design can make Greater Washington more dementia-friendly explains that "Greater Washington’s population of older adults is growing. So too is the number of people with dementia and other age-related memory loss. That makes designing for dementia one of the key ways we can make our urban spaces work for the people using them."  The article explains that many folks with dementia live within the community rather than in a facility.  As a result, city planners need to consider this when updating their urban planning and  their zoning ordinances.

[M]ost people with memory loss age in their communities, cared for by family members who do not receive enough support. Those in nursing homes often face abusive, unhealthy, or unhappy environments. Thousands of people with dementia and memory loss died from the coronavirus pandemic in nursing homes. As a result of these trends, more families are now seeking to keep loved ones with dementia in the community.

But public spaces are often unusable by people with cognitive abilities affected by dementia. People with dementia often feel overwhelmed, get lost, have trouble, or face dangerous situations while trying to navigate cities. Skills that we take for granted are difficult for older adults with dementia, including the ability to find alternative routes, filter out extraneous sensory information, or remember directions. Much of this is unintentional: designers and planners are often unaware of these needs. That intent, however, does not change the impact.

The article discusses various suggestions and techniques, such as wayfinding, signage and invigoratingly-designed spaces. Of course, safety parking, and types of seating must also be considered.  Most importantly is "listening to people with dementia, who should be engaged in design processes in some way, even if just in informal conversations. Planners and designers can learn from social programs for older adults with memory loss."

A Veterans' Low Interest Mortgage Program that Doesn't Quite Add Up?

Today, Veterans' Day, I caught an interesting radio piece on the marketing of supposedly low-interest-rate loans for those who are or have service in U.S. military branches. I've been teaching a Nonprofit Organizations Law course this semester at Dickinson Law, and the lack of transparency in the various loan programs reminded me of a student's presentation about a "veterans' benefit" nonprofit organization that, until recently, seemed to be doing more fundraising for the organizers than for the military service people.  Misuse of "charitable" missions is a topic we explore in the class.

But, I caught the program a second time while driving.  The second time around I realized that the story started with a curious segment with a particular veteran who was describing his recent struggle with a misleading veteran-friendly loan company that charged more, not less, than conventional loans.  This time, I realized the interview included a tour of the older vet's lovely home on the water in Florida, and of his various boats. The borrower was clearly proud, and rightly so, and the interviewer even admitted to a bit of envy.  The loan he was seeking was to refinance about $350k for what seemed to be pretty high-end living and it was easy to be glad the older gentleman has done well in his post-service life. 

The radio interview and the accompanying article at NPR's Morning Edition site described low-interest loans, "backed by the U.S. Department of Veterans Affairs" as a "perk" offered to vets and service members in honor of their service. Wait a minute.  This wasn't a struggling veteran getting started in civilian life, perhaps needing help to buy a first or second home or to fund to start a new business.  This veteran was struggling to find the best terms in a veteran-friendly program -- not to "get" a loan.  

My reaction the second time while listening to the program about misleading loans to veterans was "wouldn't it be better if all consumers could rely on transparency and fairness in lending rates and terms?" 

SNF Infection Control Oversight-Does It Work?

I think we can all recite the COVID #s from the spring vis a vis SNFs.  Is the infection control process enough? Is more needed? The Washington Post recently published this story, As pandemic raged and thousands died, government regulators cleared most nursing homes of infection-control violations.

At the outset of a looming pandemic, just weeks after the first known coronavirus outbreak on U.S. soil, the woman responsible for helping to protect 1.3 million residents in America’s nursing homes laid out an urgent strategy to slow the spread of infection.

In the suburbs of Seattle, federal inspectors had found the Life Care Center of Kirkland failed to properly care for ailing patients or alert authorities to a growing number of respiratory infections. At least 146 other nursing homes across the country had confirmed coronavirus cases in late March when Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, vowed to help “keep what happened in Kirkland from happening again.”

And yet, we know what happened.  The plan was for complete "a series of newly strengthened inspections to ensure 15,400 Medicare-certified nursing homes were heeding long-standing regulations meant to prevent the spread of communicable diseases. It was another key component of a national effort, launched in early March, to shore up safety protocols for the country’s most fragile residents during an unprecedented health emergency."  With that in mind, the Washington Post conducted an investigation and found that "during the first six months of the crisis [the inspectors] cleared nearly 8 in 10 nursing homes of any infection-control violations ...." The article notes that these facilities included those that had COVID outbreaks before the inspections and others that had outbreaks after inspections concluded there were no violations.  We can all realize that with COVID, not every transmission can be prevented, but the article notes that "the number of homes flagged for infection-control violations remained about the same as last year."

The article gives examples of violations and fines discusses actions taken by CMS, the lack of consistency, the imposition of small fines, and gaps in communication,  postponement of collecting fines and more.  This is a lengthy detailed article that is important to read to order to have some understanding of how COVID was able to rampage through SNFS. 

The Executive Director of the Long Term Care Coalition observed "“Nursing home residents were never more vulnerable in our lifetime, if ever... I don’t like to overuse the expression, but we literally abandoned them when the need for monitoring was the highest, when the need for quality assurance was the highest. They needed that oversight more than ever.”

And let's remember, the numbers of cases are spiking again. Have we learned any lessons from the spring?

Two Updates from SSA

Last week I received two emails from SSA that I thought I'd share with you. The first concerned the unveiling of SSA's new electronic Consent Based Social Security Number (SSN) Verification (eCBSV) service.   You might be thinking "say what?"  Well here is the info you need to know, straight from SSA

“Our new electronic SSN verification service helps reduce synthetic identity fraud by comparing agency records with data provided electronically by approved participants,” said Andrew Saul, Commissioner of Social Security. “This is an important online service that helps us provide participants and their customers fast, secure, and more efficient SSN verifications.”

Social Security created eCBSV, a fee-based electronic SSN verification service, to allow select financial institutions and service providers, called “permitted entities” and including subsidiaries, affiliates, agents, subcontractors, or assignees of a financial institution, to verify if a person’s SSN, name, and date of birth combination matches Social Security records. Social Security needs the person’s written consent and will accept an electronic signature in order to disclose the SSN verification to the permitted entity. eCBSV returns a match verification of “Yes” or “No.” eCBSV does not verify a person’s identity.

Next, SSA's latest blog post is about Social Security in plain language.

Some of the terms and acronyms people use when they talk about Social Security can be a little confusing. We’re here to help you understand all you need to know.

We strive to explain your benefits using easy-to-understand, plain language. The Plain Writing Act of 2010 requires federal agencies to communicate clearly in a way “the public can understand and use.” This can be particularly challenging when talking about complicated programs like Social Security, Supplemental Security Income, and Medicare. If there’s a technical term or acronym that you don’t know, you can easily find the meaning in our online glossary.

Think Before You Visit: Resuming Visitation in LTC Facilities

Now that there is some easing of restrictions on visitation with residents of LTC facilities, the National Consumer Voice for Quality Long Term Care has released two timely resources.  What to Look for and Questions to Ask as You Resume Visits in Long-Term Care Facilities includes a podcast as well as a fact sheet.  "As in-person visits resume Consumer Voice developed two new resources, as part of the Avoiding Drugs as Chemical Restraints Consumer Education Campaign, to assist families and loved ones prepare for visiting long-term care facilities for the first time in several months." The Fact Sheet, Reuniting Residents and Families What to Look for and Questions to Ask as You Resume Visits in a Long-Term Care Facility, discusses what to look for regarding the resident and the facility, what to ask (especially about what was going on when you couldn't visit) and what to do when you have questions or concerns about the resident's care. The podcast is available here.

Register Now: Webinar on Representing Persons Under Guardianship

The National Center for Law & Elder Rights is offering a free webinar on November 10, 2020 at 2 eastern on Representing a Person with a Guardian.  Here's the info about the webinar

Attorneys, including legal services attorneys, should be open to representing individuals under guardianship. When representing a person with a guardian, an attorney may need to take extra steps to ensure their client has the right to counsel of their choice, and be a strong advocate to ensure that the proceedings are treated with dignity and the client’s due process rights are upheld. By using procedural and evidentiary tools—including alternatives to guardianship—advocates can increase clients’ independence and autonomy and restore their civil rights.

In this training, presenters will share:

• Considerations for representing a legally incapacitated client;

• Strategies for advocating for clients’ rights;

• Standards and burdens for modifying or terminating guardianship; and

• Information on requesting reasonable accommodations.

To register for the webinar, click here