Elder Law Prof Blog

Working Longer Means Fewer Years of Healthy Retirement?

Earlier this month, Forbes  ran this article, American Elders Are Short-Changed 5 Years Of Healthy Retirement,  which explains that

America’s elders die sooner and are sicker than their counterparts in other rich nations. American elders also must work longer than their cohort abroad. These trends mean that Americans get fewer years of healthy retirement life than elders in comparable wealthy nations—five years less, in fact.

One reason for this big gap in healthy retirement is the pressure for American elders to work longer. Among major rich nations, Americans work longer than anyone except the Japanese, who retire at age 67.9 while Americans work until age 65 on average; but the Japanese live longer, so experience more healthy retirement time.

Consider this from the author: "It's sad to know that America’s de facto plan for retirement is working longer and dying sooner. This inequality of retirement time is caused by the crossing of two swords: the growing inequality of retirement wealth and the growing inequality of longevity. These inequities are deeply connected. If people who die younger could retire earlier than those with longer and healthier lives, retirement time could at least be distributed more equally."

The full article discussing life expectancy in the U.S. and abroad, as well as work histories, is available here.

Filial Friday: Virginia Governor Blocks Attempt to Repeal Virginia Filial Support Law

As is true with several U.S. states, Virginia has a filial support statute that can obligate adult children to support their parents.  The key language of VA Code Ann. Section 20-88 provides:

It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances. 

 

If there be more than one person bound to support the same parent or parents, the persons so bound to support shall jointly and severally share equitably in the discharge of such duty. . . .

 

This section shall not apply if there is substantial evidence of desertion, neglect, abuse or willful failure to support any such child by the father or mother, as the case may be, prior to the child's emancipation or, except as provided hereafter in this section, if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program. . . . 

There are few modern cases applying this law. In Peyton v. Peyton, an "unreported" Virginia chancery court decision from 40 years ago, the court applies the law to obligate one brother to reimburse another brother $8,000, representing half of the past out-of-pocket expenses for their mother's care in a nursing home. A careful reading of the Peyton case reveals one of the challenges of applying filial support laws when used to collect "back" expenses; here the second son was willing to pay a portion of their mother's monthly costs going forward but he was not successful in arguing a statute of limitations should apply to prevent liability for multiple years of back claims. 

As with other American states that have had forms of filial support laws, Virginia's law was enacted as an alternative to public welfare laws because the common law generally found no legal duty for adult children to support indigent parents.  But, in Virginia, again as in most American states, the filial support laws are largely dormant, misunderstood or ignored, especially after Social Security, Medicare, and Medicaid laws were enacted on a federal level beginning in the 1960s.  

Virginia's  statute was amended decades ago to restrict use of the law by the state to seek reimbursement for its costs in providing public services (such as "medical assistance" a/k/a Medicaid).  However, unlike the filial laws of most states, Virginia's law permits criminal prosecution as a misdemeanor for "any person violating the provisions of an order" of support under this statute, with a fine not exceeding $500 or imprisonment in jail for up to 12 months.  I find no reported cases of criminal enforcement actions.

Recognizing that other states (including neighboring Maryland in 2017) had recently taken formal action to repeal filial support laws as outdated or impractical, Virginia Senator Adam Ebbin introduced 2022 Senate Bill 389 to repeal Virginia's law. Senator Ebbin's bill passed with no dissenting votes in the Virginia Senate.  The final vote in the Virginia House, on March 11, 2022, supported repeal with 81 voting in favor, and only 16 members voting in opposition to repeal. In other words, repeal was not a controversial measure; rather it appeared to be part of an attempt to clean-up hoary laws, and it attracted strong bipartisan support.

Nonetheless, Virginia Governor Glenn Youngkin (sworn into office in January 2022) vetoed the repeal on April 11, 2022.  His reasoning for preserving filial support laws is unique, at least in my 20-some years of experience researching filial support laws (see e.g., Filial Support Laws in the Modern Era: Domestic and International and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder Law Journal 269 (2013)).  

The governor's veto statement explains:

"Primarily, the Commonwealth's filial responsibility law supports those who care for their elderly parents.  In establishing a bankruptcy budget, the court allows for necessary and reasonable expenditures and the repeal of Section 20-88 could prevent an individual from covering these expenses within the budget of their debtor.  For those undergoing bankruptcy proceedings, there is a grave risk of unforeseeable and unintended consequences, which may harm people going through some of the most difficult times in their lives."

On the one hand, in today's torn asunder political scene, no one should be surprised that a newly elected governor of one party would be vetoing legislation sponsored by a member of the other party -- and that is true here, with a Republican governor vetoing a bill proposed by a Democrat.  

But what about the proffered reason for the veto?  Virginia's law does not "primarily" support those who care for their elderly parents.  Rather, it creates an obligation for adult children. Is there any precedent for a theory that Virginia's filial support law permits some type of sheltering of assets for a debtor in bankruptcy court, to provide a means of financial support for the (also) destitute parent?  Certainly I find no modern cases on Lexis or Westlaw suggesting such use or even a need for such use.  

There is a reported case from 1938 in Virginia.  In Mitchell-Powers Hardware Co. v. Eaton, 198 S.E. 496 (Supreme Court of Appeals, VA 1938), the court addressed a question of whether a transfer of valuable stock by a debtor to his sister was voidable as an invalid gift.  Was this an invalid attempt to defeat a legitimate creditor's lien against the asset? The court recognized that under Virginia's predecessor version of Statute 20-88, the debtor "could" have an obligation to assist his sister in the care of their elderly mother. The appellate court remanded the case for a jury determination of whether the mother was actually destitute and in need of the son's financial support. (The sister had further transferred the stock in question onward to the debtor's son).  This hardly seems a persuasive case for characterizing filial support laws as necessary "support for those who care for their elderly parents."

New Report on Direct Care Workforce

PHI has released a new report,  State Policy Strategies for Strengthening the Direct Care Workforce.

Recognizing the urgency of the crisis in direct care, states are taking action—collaborating with diverse stakeholders to tackle entrenched workforce challenges in bold, innovative ways. To leverage this historic moment, PHI has compiled 24 specific policy strategies—with concrete examples—for improving direct care job quality and stabilizing the workforce. The strategies are organized according to the eight comprehensive solutions outlined in PHI’s signature report, Caring for the Future: The Power and Potential of America’s Direct Care Workforce.

Here are 3 takeaways from the report:

• This guide provides 24 specific policy strategies for improving direct care job quality and stabilizing the workforce.

• State leaders around the country are taking action to tackle entrenched workforce challenges in direct care.

• By implementing a tailored combination of strategies, state leaders will help resolve the direct care workforce crisis in their own states.

The full report is available here.

SNF Medicare Funding Proposal

On April 11, CMS announced it was proposing a decrease in Medicare funding to SNFs, according to an article in Skilled Nursing News. CMS’s Proposed $320M Decrease in Nursing Home Medicare Funding Could Be ‘Ruinous’ for Struggling Operators

The federal government on Monday proposed its payment rate update to nursing home reimbursements for fiscal 2023, which includes a 4.6% cut related to the Patient-Driven Payment Model.

That cut from the Centers for Medicare & Medicaid Services (CMS) amounts to a total loss of $320 million, according to the agency.

CMS – in its SNF Prospective Payment System proposed rule – recommended a 3.9%, or $1.4 billion, payment increase to the industry. The government agency arrived at that number by raising the market basket rate for skilled nursing facilities by 2.8%, a 1.5 percentage point forecast error adjustment and a 0.4-percentage-point multifactor productivity adjustment.

The article goes into detail about the CMS position, what is driving it and the impact it would have on the industry.  The CMS release about their proposal and the comment period is available here: Fiscal Year (FY) 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule (CMS 1765-P).

The Skilled Nursing News article also notes that CMS is looking for feedback on the issue of staffing standards. For more info on the staffing standards, see the CMS news release, HHS Takes Actions to Promote Safety and Quality in Nursing Homes.

 

What Are Your Examples of Scarecrow Laws?

I'm working on a book chapter about filial support laws, where families (usually adult children) may be surprised to learn that their state or their country has a seldom-used law that mandates financial support or maintenance for indigent family members. In working on this chapter, I was considering using the concept of "scarecrow laws" as a metaphor.  This label can apply to laws which are seldom enforced but legislators resist repeal because the very existence of the law might serve as a warning -- a scarecrow -- about the consequences of bad behavior.

While working on the metaphor, I came across an interesting application from Shakespeare's play, Measure for Measure.  In Act 2, Scene 1, we hear a harshly ambitious deputy administrator calling for the ultimate punishment -- beheading -- of Claudio, a man convicted of a crime.  But the law in question, prohibiting sexual relations outside of sanctioned marriage, is "rarely enforced."  One of Angelo's subordinates objects to the harsh sentence. Angelo responds:

We must not make a scarecrow of the law,

Settling it up to fear the birds of prey,

And let it keep one shape, till custom make it 

Their perch and not their terror.

The irony is that Angelo also seeks to violate the same law with a woman who has attracted his attention, but he discounts his own admission as, so far, mere temptation.  

Shakespeare's use of the scarecrow characterization raises a legitimate question.  Should laws, little known and rarely enforced, be removed from the books, or allowed to remain, perhaps on the justification they serve as moral guidance?  

National Guardianship Network New Video

The National Guardianship Network [Has Released A] New Video with Recommendations for Reforming Guardianship System.This video 

showcases the highlights of the Fourth National Guardianship Summit and the 22 recommendations to reform and improve state guardianship systems. The video also addresses the history of these national summits, the importance of the Fourth Summit and the main topics discussed during the Summit:

• Rights of Persons Subject to Guardianship

• Supported Decision-Making

• Limited Guardianship, Protective Arrangements, and Guardianship Pipelines

• Rethinking Monitoring and Addressing Abuse by Guardians

• Fiduciary Responsibilities and Tensions

• Developing a Guardianship Court Improvement Program

To view the video, click here.

The Sandwich Generation Is Still Going Strong

The sandwich generation, those who are raising kids and caring for their parents, continues on, as noted in the data from a recent Pew Research Fact Tank report, More than half of Americans in their 40s are ‘sandwiched’ between an aging parent and their own children.

As people are living longer and many young adults are struggling to gain financial independence, about a quarter of U.S. adults (23%) are now part of the so-called “sandwich generation,” according to a Pew Research Center survey conducted in October 2021. These are adults who have a parent age 65 or older and are either raising at least one child younger than 18 or providing financial support to an adult child. 

...

Americans in their 40s are the most likely to be sandwiched between their children and an aging parent. More than half in this age group (54%) have a living parent age 65 or older and are either raising a child younger than 18 or have an adult child they helped financially in the past year. By comparison, 36% of those in their 50s, 27% of those in their 30s, and fewer than one-in-ten of those younger than 30 (6%) or 60 and older (7%) are in this situation.

The full report is available here.

Smart Home Tech Makes Aging in Place Easier

The Washington Post recently published this article, Aging in place can be so much easier with smart home technology. "Supporting health, safety and security are important components of successfully aging in place. So are home management systems that maintain a comfortable environment, and communication and recreation systems that enable social engagement, stimulation and entertainment."  As the article notes, the type and amount of tech is vast, ranging from pretty simple types that do just a little, to more comprehensive setups that integrate into much of every day life.  The article focuses on two couples who added tech to their homes.  It also looks at the pros and cons, as well as advances and includes a list of recommendations.  The article also mentions concerns about privacy and how to mitigate that. I would also add the topic of consent, when family want to install the tech in the home of the elder.  Lots of good info in the article.

Does Ageism Make Us Invisible and Less Valuable?

Yesterday I blogged about Dr. Levy's new book on ageism.  Now, continuing that theme, I wanted to be sure you saw this article in Healthline,  Do We Become Invisible As We Age? Mentioning Dr. Levy's book as well as other factors, the article explains that

"Ageism — prejudice, discrimination, and stereotyping based on age — is sometimes called society’s last acceptable “ism.” It happens at work, to celebrities, and in everyday ways. And it can make people feel invisible as they get older...  A 2020 University of Michigan National Poll on Healthy Aging found that 82 percent of adults 50 to 80 surveyed reported regularly experiencing at least one form of “everyday ageism.” ...  And, according to the World Health OrganizationTrusted Source, “Every second person in the world is believed to hold ageist attitudes, leading to poorer physical and mental health and reduced quality of life for older persons.” ... Plus, the pandemic has only made ageism worse, by increasing the physical isolation and accordant invisibility of older adults... So, where exactly do we see ageism and what can we do about it?

The article addresses ageism by where it occurs: in the workplace, in health care, in popular culture, and exams ageism's impact on people. The article discusses why some folks have ageist views and quotes one expert who identifies two types of folks who have ageist views: "The first type are “egoistic ageists” who fear aging and consider old people both repulsive and irrelevant... The other type, ..., “compassionate ageists,” view old people as “pathetic and needy” and believe that they must be served and protected."  As far as kids and young adults, yep it happens there, according to the article, noting "that ageism 'starts in childhood and is reinforced over time.'"

The article discusses the respect for elders, the importance of self-perception, the work being done to fight ageism, and what still needs to be done.  This is a great article to assign to students!

Old Age Doesn't Have to Be a "Downer"

Professor Richard Kaplan sent me a link to a recent book review in the Wall Street Journal ‘Breaking the Age Code’ Review: Riding High Into the Sunset.

Social psychologist Becca Levy spends much of “Breaking the Age Code” doing exactly that, weaving together case studies and her own research to demonstrate that old age doesn’t have to suck at all. The expectation that aging means decay, Ms. Levy shows, is actually a major reason it so often does—our negative view of aging is literally killing us. Chipping away at this widespread and deeply ingrained conviction has a measurable effect on health after just 10 minutes. ... n 2002 Ms. Levy combined results from the Ohio Longitudinal Study on Aging and Retirement with data from the National Death Index to reveal that, on average, people with the most positive views of aging were outliving those with the most negative views by 7½ years—an extraordinary 10% of current life expectancy in the United States. 

The author discusses factors that make us prone to negative views of aging, and in particular, the prevalence of ageism. However, the author goes on to address how to change our thinking to "break the age code."

Ms. Levy finishes with a vision of paradise: “A place where ageism does not exist.” But this is no idle fantasy, it’s Greensboro, Vt. She stops for homemade lemonade with an 81-year-old writer for the local paper and swims at Caspian Lake with a real-estate agent in her 80s. When older people and society around them are “harmonized in a productive way,” Ms. Levy continues, it shows how “aging can become a homecoming, a rediscovery, a feast of life.” Or—as Grandpa Eddie puts it after his adventure has left him closer to Spencer than ever before—“Getting old is a gift.”

I'm ordering the book!

 

New Florida Law on Visitation for Health Care Facilities

NPR among other news agencies, reported on a new law signed by the Florida governor about 2 weeks ago, New laws let visitors see loved ones in health care facilities, even in an outbreak. As the U.S. News article, DeSantis Signs Hospital Visitation Bill, Other Legislation, explains, "[t]he visitation bill requires that health care facilities, including nursing homes, allow in-person visits during end-of-life situations and in most other cases. DeSantis and other state health officials said the measure was inspired by hospitals limiting visits during the coronavirus pandemic... Under the law, health care facilities have to establish visitation rules that include infection control and education policies for visitors. The policies cannot be more stringent than safety rules applied to the facility's staff and may not require proof of any vaccination or immunization. A health care center can suspend in-person visitation for specific people if they violate rules."

 

Reverse Mortgage May Not Be A Last Resort Any Longer

Professor Naomi Cahn sent me the link to this recent article in the New York Times, Reverse Mortgages Are No Longer Just for Homeowners Short on Cash. "Until recently, it was conventional wisdom that a reverse mortgage was a last-resort option for the oldest homeowners who desperately needed cash. But a growing number of researchers say these loans could be a good option for people earlier in their retirement like [those]  who are not needy at all."

The article offers the basics about reverse mortgages and offers some insights into the thinking about greater utility of reverse mortgages:

Homeowners in their 60s and early 70s could use cash from a reverse mortgage to protect investment portfolios during market downturns, to delay claiming Social Security benefits or to pay large medical bills.

“The best use of this tool is to provide and supplement income during retirement,” said ... the director of the financial planning program at the University of Illinois, Urbana-Champaign. “A younger retiree can stay in the house while turning equity into an income stream.” 

The article discusses downsides for folks to consider as well.  Read it!

 

 

AARP BankSafe Initiative Training for Retail

AARP has launched a new initiative to fight gift card scams. This is a super important project!  According to the website, 

With gift card fraud, a scammer may pretend to be someone they are not in an attempt to convince the unsuspecting person to pay them in gift cards. This type of scam can take many forms: • The scammer, claiming to be from “tech support,” says there is something wrong with a person’s computer, and that the person will need to pay in gift cards in order for tech support to fix the problem. • Posing as a user of a dating site, the scammer says they have an emergency and need another site user to help them by buying them gift cards. • Through a phone call the scammer pretends to be a relative in trouble who needs their target to send them gift cards. • Claiming to be from the IRS or Social Security, the scammer states that the person has a fine or owes back taxes that can only be paid by gift card. • The scammer impersonates the target’s utility company and threatens to shut off service unless they pay an overdue bill with gift cards.

More information about the scam and the training of retail employees is available here.

Important Report on Nursing Homes from the National Academies

I've been a bit behind on posting and although this report was released 8 days ago, I wanted to be sure readers were aware of it. The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff was released by the National Academies on Sciences, Engineering, and Medicine. Here is the description

Nursing homes play a unique dual role in the long-term care continuum, serving as a place where people receive needed health care and a place they call home. Ineffective responses to the complex challenges of nursing home care have resulted in a system that often fails to ensure the well-being and safety of nursing home residents. The devastating impact of the COVID-19 pandemic on nursing home residents and staff has renewed attention to the long-standing weaknesses that impede the provision of high-quality nursing home care.

With support from a coalition of sponsors, the National Academies of Sciences, Engineering, and Medicine formed the Committee on the Quality of Care in Nursing Homes to examine how the United States delivers, finances, regulates, and measures the quality of nursing home care. The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff identifies seven broad goals and supporting recommendations which provide the overarching framework for a comprehensive approach to improving the quality of care in nursing homes.

You can download the report as pdf or read it online for no charge. You can buy a hard copy from this link.

Thanks to Morris Klein for alerting me to the release of this report.

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

Bill Introduced to Repeal Medicaid Estate Recovery

A bill, Stop Unfair Medicaid Recoveries Act, has been introduced in Congress to repeal Medicaid Estate Recovery and to limit liens.  The bill, HR 6698 addresses the elimination of estate recovery this way:

“(6) Notwithstanding any preceding provision of this subsection, no adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be initiated, maintained, or collected on or after the date of the enactment of this paragraph. Not later than 90 days after such date, a State shall withdraw any lien in effect as of such date with respect to such medical assistance correctly paid.”

The full text is available here.  Information about the bill, including the sponsor and co-sponsors, is available here. Thanks to attorney Jim Schuster for alerting us to this legislation.