Elder Law Prof Blog

Roundup on Nursing Home Articles

Starting off the month of June with another roundup of articles about nursing homes.

First, from the New York Times at the end of April, Cuomo Aides Spent Months Hiding Nursing Home Death Toll.

Then, also from late April, this article from Politico, Will the Nursing Home of the Future be an Actual Home?

Then, a recent report from the GAO, COVID-19 in Nursing Homes: Most Homes Had Multiple Outbreaks and Weeks of Sustained Transmission from May 2020 through January 2021 (the link takes you to the page with links for highlights, the full report, fast facts, and a podcast).

On another topic related to SNFs, as we approach hurricane season, this important report about facilities in Florida with emergency power backups.  See, generators by Florida county for ALFs and SNFs.

Elders in China Have to Delay Retirement?

A few weeks ago the New York Times ran an article regarding the need for delayed retirement on the part of many Chinese elders. A Graying China May Have to Put Off Retirement. Workers Aren’t Happy, notes that the "Chinese government said it would raise the mandatory retirement age, which is currently 60 for men."  Why, you ask, did China announce this unpopular plan? Because, according to the article, this phased-in "delay [of] the legal retirement age” over the next five years, [is] an attempt to address one of the country’s most pressing issues. Its rapidly aging population means a shrinking labor force. State pension funds are at risk of running out. And China has some of the lowest retirement ages in the world: 50 for blue-collar female workers, 55 for white-collar female workers, and 60 for most men."  The article notes other countries that have taken a similar approach and the bumpy road in doing so.  It also notes that this was a problem decades in the making.  There are ramifications of this approach (beyond unhappy workers), including "[the risk of] undermining another major government priority: encouraging couples to have more children, to slow the aging of the population."

Stay tuned.

New Issue Brief on Medicaid Estate Recovery

Medicaid Estate Claims: Perpetuating Poverty & Inequality for a Minimal Return was released last month by the California Advocates for Nursing Home Reform (CANHR), Justice in Aging, National Academy of Elder Law Attorneys (NAELA), National Health Law Program (NHeLP), and Western Center on Law & Poverty.

Federal law requires state Medicaid programs to seek repayment of specified Medicaid benefits, even if the state would prefer not to seek such recovery. The Medicaid program’s claim is enforced against the heirs of now deceased persons who relied on Medicaid, forcing the heirs in many cases to sell a family home that otherwise would have been passed down. The burden of estate claims falls disproportionately on economically oppressed families and communities of color, preventing families from building wealth through home ownership, which has been historically denied to communities of color through discriminatory public policy. The burden also falls inequitably on families due to medical unpredictability – for example, because their family member developed Alzheimer’s Disease, needing months or years of nursing home care or equivalent home and community-based services. This unpredictability is exacerbated by inequities in our health care system that particularly harm lower-income and older adults of color. All these factors contribute to estate claim collections being unfair and societally counterproductive. Congress should amend Federal law to eliminate Medicaid estate claims. Alternatively, the law should be amended so that states have the choice of whether to use Medicaid estate claims, as recommended in a recent report to Congress by the Medicaid and CHIP Payment and Access Commission (MACPAC). (Citations omitted)

The full brief is available here.

More on Ageism

Yesterday I was blogging about positive aging birthday cards. Today, I want to note a couple of articles from last month about ageism, and its prevalence in our culture. First, an article published in Time magazine: Ageist Attacks Against President Biden Reinforce Outdated Stereotypes—and Hurt Younger People, Too.  "Age has long been a powerful political weapon, and Biden has by no means been the sole target. Similar questions have recently been raised about California Senator Dianne Feinstein, who, at 87, is the oldest member of the U.S. Senate, and Wilbur Ross, President Trump’s former Commerce Secretary, who’s now 83."  Don't forget we also think about age when we think about some of the Supreme Court Justices.

The title suggests ageism harms us all. How does it hurt younger folks? The article offers this: "experts say age-based attacks ... demonstrate how common ageist stereotypes are in American culture—to everyone’s detriment. 'Cultural messaging gets internalized, and it can shape the attitudes that people have about their own aging process, and about their awareness of their age related changes when they do happen,'" one expert stated for the article. 

The article points out the weakness of trying to correlate age and ability.  "[M]edical advancements mean that people are not only living longer, but are often at their maximum cognitive capacity deeper into old age. The prevalence of older people with dementia “declined significantly between 2000 and 2012,” a 2017 study published in JAMA Internal Medicine found. 'Chronological age in and of itself is not a good indicator of what a person is capable of doing....'"

The article explains the impact of ageist attacks on us collectively and individually and suggest that "The key...  is for people to be mindful of underestimating people based on their age, and instead look for instances in which individual older people defy stereotypes." 

Follow the Time article with this one also from last month: The Old Guy’s Taking His Shot.  Here's an excerpt:

Just days away from 100 days in office, there’s already a vigorous record of achievement that belies the notion that an old guy can’t handle the rigors of the job. Quite the opposite. For all those who complained before the election about another old white guy taking the reins, whined that we needed someone younger and fresher, and worried that he was the last guy to take the country into the future, Biden has proffered a compelling (and calm) counterpunch.

Knowledge, experience and the wisdom of age—matched with the common sense to surround himself with talented professionals and experts—looks not only like the right package for this moment, but a winning approach at any time. I’m not doubting that younger people are capable of handling the job, of course, but the 78-year-old might have one extra ingredient that his younger colleagues don’t.

 

P.S.  Why do we refer to products as those that "fight aging" or are "anti-aging" instead of  referring to them as "enhancing aging" or are for "positive aging"? 

Positive Approach to Aging

A few days ago I read about a website that offers positive aging birthday cards. The cards are part of a project based out of Colorado, Changing the Narrative: Ending Ageism Together, which "is a strategic communications and awareness campaign to increase understanding of ageism and to shift how Coloradans think about aging."  Here's more info about the Colorado campaign:

Changing the Narrative in Colorado builds on five years of national work initiated by eight leading aging organizations that recognized a shared challenge: that what they were seeking to communicate about aging and ageism, and the social challenges and opportunities posed by demographic change, was not getting through in the way intended to the general public. They engaged FrameWorks Institute to research how the public thinks about aging and ageism, and to test messages that could shift thinking in a positive direction. This resulted in a toolkit and training trainers who could teach others effective ways of communication about aging and ageism. Read more about the organizations and funders involved in the national effort here.

Changing the Narrative in Colorado is one of two efforts [1] currently underway to bring this evidence-based messaging and communications about aging and ageism to regional audiences.

[1] The other is an effort in Northern New England by the Endowment for Health and Maine Community Foundation to build communications capacity through in-person and online training in reframing aging.

Now, about the birthday cards...  The project is called the "Anti-ageist Birthday Card Project" where the organization "selected a diverse group of Colorado artists to design anti-ageist birthday cards. The designs defy negative views of aging and celebrate the joys of getting older. ... It’s time to celebrate the fact that we get to age."

There are a number of designs available for purchase, all of which may be viewed here.  For more information about why positive aging birthday cards are so important in the fight against ageism, read the blog post available here.

 

Professor Kohn Authors Two New Articles About COVID and SNFs

Professor Nina Kohn recently released two new articles. The first,  Nursing Homes, COVID-19, and the Consequences of Regulatory Failure, was published in volume 110 of  the Georgetown Law Journal. Here is the abstract

This essay explores the COVID-19 crisis in America’s nursing homes and its lessons for the future of long-term care. It challenges narratives portraying nursing homes as the unfortunate victims of COVID-19 by showing how the crisis is the foreseeable result of regulatory gaps and failures that have long enabled nursing homes to engage in systemic neglect. It then shows how regulatory approaches employed in other parts of the U.S. healthcare system could be used to create a more humane and resilient long-term care system. It concludes by considering the implications of such reforms for enhancing equity and reducing structural ageism.

The full article is available here.

The second article is an opinion piece recently published in the Washington Post,  Covid awakened Americans to a nursing home crisis. Now comes the hard part.

The problems in America’s nursing homes won’t go away even if we wrestle covid-19 into submission, however. The pandemic exposed long-standing problems in the nursing home industry that stem from chronic understaffing and underspending on care for residents — problems often motivated by owners who place profit-seeking above their residents’ welfare. Spurred by the covid-19 tragedies, some federal and state lawmakers have proposed (and, in some cases, passed) laws designed to improve the quality of nursing home care. It’s a promising start, but much work remains.

It's important to read anything Professor Kohn publishes. You have the links; now it is up to you!

Thanks to Professor Kohn for sending me the links to the articles.

Folks Want to Age At Home

Long-Term Care in America: Americans Want to Age at Home covers recent poll results about long term care.

In the wake of a pandemic that was especially devastating for nursing homes, the vast majority of Americans want to age at home and want government action to help them do so, according to a new study from The Associated Press-NORC Center for Public Affairs Research.

Even as concerns about the safety of nursing homes decline as more and more COVID-19 vaccines are administered, 88% of Americans would prefer to receive any ongoing living assistance they need as they age at home or with loved ones. Just 12% want to receive care in a senior community or nursing home. With that objective of aging in place in mind, more than 6 in 10 support a variety of policies that would facilitate aging at home including a government-administered long-term care insurance program, similar to Medicare.

Here are three highlights from the poll

Three Things You Should Know About The Long Term Care Poll on Aging at Home
Among Americans Adults:
1) 88% would prefer to receive any ongoing living assistance they need as they age at
home or in a loved one’s home
2) 51% think Medicare should have a large responsibility for paying for ongoing living
assistance, and 49% expect to rely on it to pay for care they need as they age.
3) 53% have already received health care at home during the pandemic through telehealth

The full report is available here.

Thanks to Morris Klein for sending me the article.

Colorado: "Former Police Officers" Facing Criminal Charges For Conduct in Arrest of Woman with Dementia

On May 19, 2021,  the District Attorney's Office covering Loveland Colorado announced criminal charges against two officers who had already been removed from the force after details became public about their June 2020 arrest of a 73 year-old woman with dementia.  The primary arresting officer was charged with second degree assault causing bodily injury, attempt to influence a public servant (both being felony charges) and official misconduct, a misdemeanor, while a second officer who arrived midstream, was charged with misdemeanors, of "failing to intervene" in a case of excessive force, failing to report the use of force, and official misconduct, according to records from the DA's office.  

More details here:

 New York Times:  Former Police Officers Charged Over Arrest of Woman with Dementia

The Coloradan:  Arrest Documents - Former Loveland Officer Downplayed Force in Report on Karen Garner

 

How Sibling Rivalries Impact Caring for Mom

The Washington Post published this article, When an ailing parent needs more care, sibling conflicts can arise and add to stress.

Everyone wants what is best for Mom. But when an aging parent receives a dire diagnosis, old scores, rivalries and pecking orders from childhood can come back to haunt.

Siblings may spar over the merits of assisted living vs. in-home care. The oldest may make a critical decision without consulting the others. Another is focused on who will pick up the tab.

The article notes that typically one of the kids does the bulk of the caregiving, usually "the oldest or youngest daughter or the parent’s favorite...."  Note this quote from the article: "The most common grievance of primary caregivers: “Why is no one helping me?” ... On average, the person in this role devotes 24 hours per week to caregiving over a period of four to five years, according to the AARP-NAC report. This, while the majority hold other jobs, too." Siblings may not reconcile just because mom now needs care.  Others may live too far away to pitch in.  The experts interviewed recommend a plan, identifying which sibling might contribute money, another may be able to provide hands-on help, another can handle the administrative matters like reviewing insurance claims and paying bills.  One message that comes through clearly in the article is the importance of communication amongst the kids. Avoid the traps of arm-chair quarterbacking when the siblings who aren't providing the care decide the sibling caregiver isn't providing the care in the way they would.... The article discusses the use of mediators or social workers who work with elders.  

The biggest mistake caregivers make is not starting conversations earlier with parents about advance planning, Irving says.

Ask parents what quality of life looks like for them and where they want to live in their later years, she says. Being able to respect a parent’s wishes can circumvent sibling infighting later.

Has Covid-19 Made Estate Planners (and, therefore, courses on estate planning) "Popular"?

I've had the same conversation lately with a number of lawyers working in estate planning or estate administration.
 Today, while walking back from lunch downtown on an especially nice spring day in Carlisle, an attorney, a former Dickinson Law graduate, saw me and called out -- "Do you know any recent graduates looking for a job in estate planning?"  That's probably the 5th time I've been asked that question just in the last month.  

On the practical side, I'm hearing that the Covid-19 experience has made younger adults more realistic about the need for sound estate planning documents.  On a sadder note, especially in Pennsylvania counties hit hard by the virus, lawyers and their staffs are reporting being overwhelmed with the number of estate administrations needed, especially for medium-size estates, including those with assets but no written plan.  

 

Round up on SNF Articles

Still emerging is the COVID impact on the SNF model of nursing home care.  Take a look at these recent articles to note the trends.

1. Medicare requiring nursing homes to report weekly vaccination statistics.
2. Nursing Homes Must Educate, Offer Covid-19 Shots, HHS Says (1) and the corresponding interim rule, here.
3. How Vaccine Hesitancy Is Driving Breakthrough Infections in Nursing Homes.
4. Big Investors Push Nursing Homes to Upgrade Care and Working Conditions.
5. Covid Forces Families to Rethink Nursing Home Care.
6. Covid awakened Americans to a nursing home crisis. Now comes the hard part.

These are all worth the time to read. Stay tuned-there's no clear cut path yet.

Increase in Retirements During Pandemic

The New York Times published an article,  In Reversal, Retirements Increased During the Pandemic. "After decades in which it decreased, the retirement rate rose during the pandemic, according to the latest government data. This makes retirement one exception to the many ways that the pandemic accelerated pre-existing trends .... "  The article examines the explanations for this trend, such as losing employment, an employer going out of business, and the higher risk of illness for those employees who are older.  The article predicts that the trend won't continue. "Even though the retirement rate increased during the pandemic, it won’t necessarily rise further. It’s worth emphasizing that the retirement rate rose around the start of the pandemic but did not continue to do so. After the initial spike in joblessness at the start of the pandemic, the share of those 55 to 64 who were out of work but not retired fell rapidly without a further rise in retirement."

Texas Families Seek Legislative Changes to Better Assure Accountability for Seniors' Safety

Families in Texas have been hard at work the last two years, responding to the deaths of loved ones in Dallas-area senior-living communities who may have been killed by a serial murder suspect.  Organizing under the name "Secure Our Seniors Safety," they have pressed for an array of legislation to compel care-giving communities to provide greater accountability, including reporting suspicious activity such as employee concerns, where there is potential risk to vulnerable adults.  One of the bills, "Marilyn's Law," or HB 723 was named after one of the suspect's victims. Marilyn's daughter had initially been told her mother, who was living in a care center, had died of "natural causes." The death certificate was later amended, but the daughter only learned from news reports that her mother may have been one of the suspect's victims, suffocated with a pillow.

From a recent Dallas News article:

The first bill filed in response to a string of slayings at Dallas-area senior living communities passed the Texas Senate on Thursday and now awaits Gov. Greg Abbott’s signature.

 

For the families who say their loved ones were killed by a serial murder suspect, it’s a moment more than two years in the making. . . .

 

The bill passed Thursday is named for Pangburn’s mother, Marilyn Bixler. Marilyn’s Law, or HB 723, was introduced by two Collin County lawmakers — Sen. Angela Paxton and Rep. Jared Patterson — after The Dallas Morning News first reported Pangburn’s story.

 

The new law will require officials to notify next of kin if a cause of death is amended.

The bill was signed into law by the Texas Governor on May 15, 2021.  

Chemirmir, a suspect in at least 17 murder, theft or attempted murder cases, awaits trial because of delays related to Covid-19,  according to news reports, including national news profiles. 

For more on related legislation pending in Texas, see "Death Certificate Bill Filed in Response to Chemirmir Case Passes in Austin." 

 

 

Attorneys with Dementia

The ABA Journal recently ran an article, As the legal profession ages, dementia becomes an increasing concern. "There is no comprehensive information about how often ethics officials and lawyer assistance programs deal with lawyer dementia, according to Bloomberg Law. But the percentage of lawyers older than age 65—about 14%—is higher than the 7% of workers generally in that age group, suggesting that the problem could be worse in the legal profession."  The article discussed the potential difficulty for identifying lawyers who may have dementia as well as the variety of state requirements regarding the obligation to notify the disciplinary authority of an attorney who may have dementia.  ABA ethics opinion 03-429 is discussed, as well as the Illinois story of Robert Fritzshall.  

FAQs on SNF Visitation

The National Consumer Voice for Quality Long Term Care has released an FAQ, Nursing Home Visitation and Quarantine: Frequently Asked Questions (FAQs) & Advocacy Strategies for Families. The ten questions addressed in the FAQ include the restriction on frequency, location, and length of visitation; refusal of visitation because of staff shortages or positive tests; whether the SNF can require visitor to be vaccinated or have a negative COVID test; the scope of compassionate care visits;  the impact of briefly leaving a facility; and the distinctions for residents who have been vaccinated.  In addition the FAQs offer some suggested actions that may be taken as well as strategies.  The full FAQ is available here.

What Happens to Social Security Benefits If the Beneficiary Goes to Jail or Prison?

This semester at Dickinson Law, I've been teaching a comparative law module on Social Security Benefits.  We've been spending more time than usual examining issues associated with basic "retirement benefits" rather than the more complicated topics of Social Security Disability (SSD) and Supplement Security Income (SSI) benefits.  

A group of us ended the semester with an interesting hypothetical.  Imagine that a retired, older client has a DWI -- his second within some number of years -- involving property damage and, thankfully, no direct endangerment to anyone's life or safety.  Assume a damaged mailbox or telephone pole. The state law might treat that as a misdemeanor, but because it is a second offense, it could still mean substantial jail time.  The client is thinking about pleading guilty, even if the sentence is 60 to 90 days.  The older client might be thinking "the faster I get this over, the faster I can get home and headed back in the right direction with my life."

Do lawyers advise such clients of the potential impact of incarceration, whether in a jail or prison, on his or her right to receive  basic Social Security benefits?  This was a new topic for me and of course that sent me scurrying for information.  Here's what I've read so far:

• The Social Security Administration has a December 2019 brochure, entitled "What Prisoners Need to Know."  
• Federal statutory law currently provides, at 42 U.S.C. Section 402(x)(1)(A), that "no monthly benefits shall be paid" to any individual who is "confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense" for 30 continuous days or more.  Does this mean the trigger for loss of benefits is 30+ days of confinement for any crime, even a misdemeanor? While a related regulation, at 20 CFR Section 404.468, provides that no monthly benefits shall be paid if the confinement is for a "conviction of a felony," (my emphasis added) it may be that regulation's language reflects pre-1999 statutory law.  See e.g., amendments to Section 402(x) set forth in  P.L. 106-170 (Dec. 17, 1999), 113 Stat. 1860, an act with the ominous name of "Ticket to Work and Work Incentives Improvement Act." 
• Cases explain that since 1983, the statutory mandate to suspend payments applies to basic retirement benefits, as well as SSD and SSI, and can also trigger a demand for refunds of any SS program funds "overpaid" during confinement, potentially reducing any future benefits the individual would otherwise receive once out of  jail. See e.g., Zipkin v. Heckler, 790 F.2d 16 (2d Cir. 1986). 
• Attempts to challenge the application of Section 402(x) by arguing the law violates substantive due process, equal protection or is unconstitutional as a bill of attainder or ex post facto law have not met with success.  See e.g., Butler v. Apfel 114 F.3d 622 (9th Cir. 1998).

Back to our hypothetical.  The client might be planning to go home after 30, 60, 90 days or more in jail, but what if the client was depending on SS retirement income -- reflecting his life-time work record -- in order to keep making house payments for that time? 

Originally the theory of suspending federal SS payments focused on "disability" payments, because the confined individuals were being maintained at public expense and their inability to work is a consequence of their criminal conviction, not their disability.  But what of the 1983 amendment, expanding the suspensions to SS retirement income?  In the Zipkin case linked above, at page 18-19, the Second Circuit rejected any distinction:

"We can perceive no reason why prisoners whose retirement benefits are suspended would have a need for replacement of income while prisoners whose disability benefits are suspended do not.  Rather, prisoners, as a group, do not have the need for a continuing source of income that nonprisoners typically may have. . . .  Social Security retirement benefits are designed to satisfy certain baseline economic needs, reasonably predictable when a worker retires. . . . They are not benefits held in trust and payable per se." 

It is a tough world, right?  But does it need to be this tough?  According to the Social Security Administration's recent statistics, among elderly Social Security beneficiaries, "21% of married couples and about 45% of unmarried persons rely on Social Security for 90% or more of their income."  Feel free to add your own thoughts in the "comments."

Financial Capacity as an Alzheimer's Indicator?

Published recently in the New York Times, She Bought a Truck on eBay, Then Forgot It. A Dementia Diagnosis Came Later. discusses how a lack of financial capacity may be an indicator of dementia.

[M]oney troubles aren’t unusual among people who are beginning to experience cognitive decline. Long before they receive a dementia diagnosis, many people start losing their ability to manage their finances and make sound decisions as their memory, organizational skills and self-control falter, studies show. As people fall behind on their bills or make unwise purchases and investments, their bank balances and credit rating may take a hit.

The isolation that came from COVID may have allowed a number of cases to go undetected, since there wasn't the same level of interaction with folks. "Many older people have remained isolated from loved ones who might be the first to notice unpaid bills or unopened bank notices."  Check out the finding from one of the studies mentioned in the aticle

Another study, published in JAMA Internal Medicine in November, used data on Medicare claims and from the Federal Reserve Bank of New York/Equifax Consumer Credit Panel to track people’s credit card payments and credit scores. The study found that people with Alzheimer’s and related dementia were more likely to miss bill payments up to six years before their diagnosis than were people with no diagnosis. The researchers also noted that the people whose dementia was later diagnosed started to show subprime credit scores 2.5 years before the others.

Read this article---it's important!

Accessibility of Theme Parks

The most wheelchair-friendly theme parks in the US explores the five most accessible parks (and you may be surprised at which ones made the list). The five are: Morgan's Wonderland, Morgan's Inspiration Island, Disney World, Holiday World & Splashin' Safari, and Hershey Park and ZooAmerica.

Stop and think for a minute about this: we all benefit from wider accessibility.  Thanks to my colleague and dear friend Kelly Feeley for sending me this article.

Happy Friday.

Tech Trends!

AARP recently released this report, 2021 Tech Trends and The 50-PLUS: Top Ten Biggest Trends.

Here are the ten:

1. In 2020, a year when a global pandemic significantly limited social interaction, technology became more important than ever — for everyone.

2. Video-chat is here to stay.

3. The dependency on tech has created new social behaviors, although it’s too soon to tell what will stick around.

4. Older adults are doing more with their smartphones, by development over time or necessity, and using them more frequently.

5. 2020 is the year older adults adopted, updated, and modernized their tech, and many spent big bucks to do so.

6. Smart TV’s were the second-most popular tech purchase.

7. 2020 brought a dramatic shift in how adults 50-plus consume entertainment. Growth in streaming was huge, but cable tv is still important (for now).

8. Some barriers to technology adoption and use still exist for older adults.

9. Privacy is an important but misunderstood issue for many.

10. Disparities related to access have a significant impact on technology adoption and use among older adults.

Take a look at the findings for #10. This is pretty darn important:

• Sixty percent of adults 50-plus say the cost of high-speed internet is a problem for them personally.
• On average older adults spend $269 a month (16% of their budget) on tech expenses such as internet, cellphone, cable, and streaming
services (average estimated monthly costs: internet, $68; cellphone, $103; cable, $78; and streaming services, $20).
• A quarter (23%) of rural customers acknowledge that access to high-speed internet is a major problem for their community.
• And while older, urban customers have ample access to high-speed internet such as cable and fiber, they, like rural customers, indicate
that cost is a major problem (23% and 26%, respectively).
• Fifteen percent do not have any type of internet or are not sure if they have it.

Gen Xers: Retirement is Coming!

The New York Times ran a story, Generation X, Your AARP Card Awaits.

The skateboarder, wearing a flannel shirt and black sneakers, glides a board plastered with stickers toward a kick-turn in a sun-dappled concrete bowl.

The image might seem like the embodiment of the shredding youth, but something is different. The skater looks noticeably risk-averse, wearing a full ensemble of pads and traveling at a speed not much faster than a grocery cart. With his graying hair and paternal air, he could pass for a clergyman.

Still, he’s out there, doing it. Never say that the Nirvana generation stopped rocking.

The scene is plucked from an AARP television spot to debut during Sunday’s Academy Awards telecast that targets Generation X, .... In addition to Gen Xers, the spot also features a few younger baby boomers, doing tai chi and performing TikTok dances with their children (or perhaps grandchildren). 

The article discusses various characteristics of the Xers and what it might mean as they plan for retirement.

Aging, the great equalizer!