Elder Law Prof Blog

CMS Actions to Improve SNF Resident Quality of Life and Care

Last month, CMS issued an advisory that it had "Issue[d] Significant Updates to Improve the Safety and Quality Care for Long-Term Care Residents and Call[ed] for Reducing Room Crowding."

[CMS] issued updates to guidance on minimum health and safety standards that Long-Term Care (LTC) facilities ... must meet to participate in Medicare and Medicaid. CMS also updated and developed new guidance in the State Operations Manual (SOM) to address issues that significantly affect residents of LTC facilities. The surveyors who use these resources to perform both routine and complaint-based inspections of nursing homes are responsible for determining whether facilities are complying with CMS’ requirements.

A fact sheet on the updated guidance, also released last month, is available here.

No Arbitration Where Care Center Resident Blind, Medicated, and In Pain, Plus More

The Insurance Journal ran this article recently, Nursing Home Denied ‘Unconscionable’ Arbitration Where Patient Was Blind, Alone. The arbitration agreement in question was "to settle e a family’s wrongful death complaint where the arbitration papers had been signed by the deceased woman when she was blind, on medication and in severe pain."  It wasn't just that, though for which "[t]he Pennsylvania Superior Court ... upheld a trial court in finding that the arbitration agreement was 'unconscionable....'"   In addition, the resident "was alone when she was asked to sign the arbitration agreement, ... was not given a chance to read it and other admission documents before signing, ... was not given a copy of the agreement after she signed, even though it permitted her to rescind within 10 days, and the ... admissions director did not read or explain all of the arbitration agreement’s provisions."

Thanks to Morris Klein for sending me the article.

Tampa Bay Area SNF Closes After Medicare Loss

My local paper, the Tampa Bay Times, reported a story, A Florida nursing home lost its Medicare benefits. Residents lost a home. The article covers the impact on residents being forced to locate, the corporate structure of the SNF, and various issues regarding resident care.  The article notes that "[the nursing home ...  became the latest in Florida formerly affiliated with Consulate Health Care to lose its federal benefits since May because of poor patient care. The federal government considers termination of Medicare and Medicaid a “last resort,” implemented only after “all other attempts” fail to resolve health and safety deficiencies."  The full article is available here.

7th World Congress on Adult Capacity 2022

I have heard that the 7th World Congress on Adult Capacity 2022 was quite successful. I was excited to see that the conference organizers have published a link to download the various presentations.  The link is available here and then choose the presentations you wish to download.

Do Federally Exempt Nursing Homes, Assisted Living, and Continuing Care Communities Also Qualify as "Institutions of Purely Public Charity?"

The latest in a series of senior-care related cases is making  its way through the Pennsylvania appellate courts, asking whether a federally tax exempt senior living facility -- one that offers a range of options including independent living, "supported" independent living, personal care, and skilled care, although it isn't licensed as a CCRC -- can also qualify for state property and sales tax exemptions. 

Pennsylvania, in ways similar to many states, allows a federal charitable tax exemption under Rev. Code Section 501(c)(3) to serve as the basis for state exemptions from income taxes, but a separate state statute sets tougher requirements to qualify as a "purely public charity" in order to avoid responsibilities to pay real property, sales and use taxes.  Nursing homes, intermediate care settings (such as personal care or assisted living), and continuing care retirement communities (CCRCs) often rely on federal revenue rulings that recognize historical grounds to exempt "homes for the aged" from taxation.  See e.g., Rev. Rul. 72-124 (also available at 1972 WL 30720).  But on a fairly regular basis, Pennsylvania taxing authorities have challenged such enterprises as not being "sufficiently" charitable.  Compare, for example In re St. Margaret Seneca Place, 640 A.2d 380 (Pa. 1994) (upholding state tax exemptions for a nursing home) with Appeal of Dunwoody Village, 52 A.3d 408 (Pa. Commw. 2012) (denying state tax exemption for a CCRC).   In September 2021, a panel of the Commonwealth Court of Pennsylvania, using a "totality of the circumstances" approach concluded that the facility failed to donate a substantial portion of its services, and failed to show it benefits a substantial and indefinite class of persons who are subjects of charity.  See  Friends Boarding Home of Western Quarterly Meeting v. Commonwealth, 260 A.3d. 1064 (Pa. Commw. 2021).

The case is now under  review for en banc consideration by the full Commonwealth Court, and there are indications the case might go all the way to the Pennsylvania Supreme Court.  Working with my former Elder Protection Clinic colleague, Douglas Roeder, Esq., we examine a series of cases and trends under Pennsylvania law, including those involving senior living enterprises,  as reasons to consider larger implications for federal and state exemptions based on charitable grounds.  See Putting the Charity Back in Purely Public Charities (July 2022). 

is Someone Ever Too Old to Hold Elected Office?

A recent opinion piece in the New York Times, Joe Biden Is Too Old to Be President Again,  gave me pause and I realized that  age (as in too old, not too young) is once again going to be a prominent part of the mid-terms and beyond.  In this context, is talking about someone's age (as in, too old to hold a specific office)  ageism, or is it a valid criteria for the ability to do the job dependent on the specific office held? Should the focus be on ability (physical, mental, or both) to discharge the duties of the office, the age of the person, or both? Regardless of anyone's respective position, it's going to be an issue in the campaigns.  I'm preparing for a interesting discussion with my students this fall.

New Article on Needed Medigap Protections

 

Center for Medicare Advocacy Senior Policy Attorney Kata Kertesz had her article, “Expansions of Medigap Consumer Protections are Necessary to Promote Health Equity in the Medicare Program,” published last week in the Stetson University College of Law Journal of Aging Law & Policy.   The article starts on page 39.  Check out all the other articles in the volume while you are dowloanding the Medigap article.

Check it out!

Borchard Foundation Center on Law & Aging Academic Research Grants Application Now Open

From the Boarchard Foundation Center on Law & Aging:

The Borchard Foundation Center on Law & Aging

Requests Proposals for 2023 Academic Research Grants

Legal, health sciences, social sciences, and gerontology scholars and professionals are invited to submit research proposals to The Borchard Foundation Center on Law & Aging. The objective of the Academic Research Grants Program is to further research and scholarship about new or improved public policies, laws, and/or programs that will enhance the quality of life for older adults, including those who are poor or otherwise isolated by language, culture, disability, lack of education, or other barriers.

Up to four grants of a maximum of $20,000 each will be awarded. The Center expects grantees to meet the objectives of the grant program through individual or collaborative research projects that analyze and recommend changes in one or more important existing public policies, laws, and/or programs relating to older adults; or, anticipate the need for and recommend new public policies, laws, and/or programs necessitated by changes in the number and demographics of the country’s and the world’s elder populations, by advances in science and technology, by changes in the health care system, or by other developments. It is expected that the research product will be publishable in a first-rate academic journal.

Further information about the research grant program and the application process is available on the Center’s website at www.borchardcla.org. The on-line application is available on the Center’s website as of September 15, 2022. Applications should be submitted no later than October 17, 2022. Selections will be made on or about December 15, 2022. Funded projects must begin no later than June 1, 2023 and be completed within 12 months.

For more information, contact Mary Jane Ciccarello, Director, Borchard Foundation Center on Law & Aging, [email protected].

One Downside to Caregiver Shortages

Of course there  are many downsides to caregiver shortgages.  Add to that the hot employment market and you can see the problem-the family caregiver has an opportunity to enter the workforce but the  lack of caregiver options prevents the family member from taking a job.  The New York Times dicussed this dilemma in  Jobs Aplenty, but a Shortage of Care Keeps Many Women From Benefiting.

A dearth of child care and elder care choices is causing many women to reorganize their working lives and prompting some to forgo jobs altogether, hurting the economy at a moment when companies are desperate to hire, and forcing trade-offs that could impair careers.

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Those forced to cut back on work could face lasting disadvantages. They are missing out on an unusual moment of worker power, in which many employees are bargaining for higher wages or switching to more lucrative jobs. Right now, the fields where women are most concentrated — including service sector jobs in hospitality and health care — have some of the most openings and the most rapidpay growth.

Are we moving towards any viable solutions any time soon?

When Was the Last Time You Had Your Eyes Checked?

You may be thinking to yourself, what does that have to do with elder law?  Well, read this article from the New York Times,  New Dementia Prevention Method May Be Behavioral, Not Prescribed. Here's the crux of the article: "[p]ublic health experts and researchers argue that it is past time to turn our attention to a different approach — focusing on eliminating a dozen or so already known risk factors, like untreated high blood pressure, hearing loss and smoking, rather than on an exorbitantly priced, whiz-bang new drug."  So now, about getting your eyes checked....

The latest modifiable risk factor was identified in a study of vision impairment in the United States that was published recently in JAMA Neurology. Using data from the Health and Retirement Study, the researchers estimated that about 62 percent of current dementia cases could have been prevented across risk factors and that 1.8 percent — about 100,000 cases — could have been prevented through healthy vision.

What other risk factors should we conside?

The influential Lancet Commission began leading the modifiable risk factor movement in 2017. A panel of doctors, epidemiologists and public health experts reviewed and analyzed hundreds of high-quality studies to identify nine risk factors accounting for much of the world’s dementia: high blood pressure, lower education levels, impaired hearing, smoking, obesity, depression, physical inactivity, diabetes and low levels of social contact.

In 2020, the commission added three more: excessive alcohol consumption, traumatic brain injuries and air pollution. The commission calculated that 40 percent of dementia cases worldwide could theoretically be prevented or delayed if those factors were eliminated.

So let me add to my initial question: when was the last time you had you had your vision and hearing checked?  No time like the present...

Multi-Generational Housing Article

Last week the Wt featured an article about an elder taking on a college student as her roommate. One roommate is 85, the other is 27. Such arrangements are growing. For these two roommates, they learned about each other through an agency, "Nesterly, an online home-sharing agency that matches young renters with not-so-young people looking to supplement their incomes and share their space."  The arrangement is more than just renting space. For these two roommates, "[the owner] would rent the first floor of her home to [the college student] for $700 a month in exchange for help with the housework and gardening and occasional grocery runs. And [the college student] would get a safe and spacious place to live just six miles from Boston and a 30-minute drive from her robotics engineering job in Beverly, Mass.

Is multi-generational housing growing in popularity? According to the article

About 18 percent of Americans live in multigenerational households — meaning two or more adult generations — according to a study from Pew Research Center published this year. Such arrangements have quadrupled in the United States since the 1970s, with about 60 million U.S. residents now living with adults who are of a different generation, according to the study.

Contributing to that trend is that more young people are priced out of the housing market and more seniors want to age in place, said  [the] executive director of Generations United, a D.C.-based organization that focuses on programs and policies that connect generations.

The article notes that some universities offer such intergenerational roommate matching programs.Seems like a win-win!

Did You Catch the SSA and Medicare Trustees' Reports?

 Early last month, the SSA Trustees released their annual report. Here's the bottom line:

 The combined asset reserves of the Old-Age and Survivors Insurance and Disability Insurance (OASI and DI) Trust Funds are projected to become depleted in 2035, one year later than projected last year, with 80 percent of benefits payable at that time.

The OASI Trust Fund is projected to become depleted in 2034, one year later than last year’s estimate, with 77 percent of benefits payable at that time. The DI Trust Fund asset reserves are not projected to become depleted during the 75-year projection period.

The full report is available here.

The Medicare Trustees also released their 2022 annual report, which is available here. Here's the bottom line for Medicare:

• The Hospital Insurance (HI) Trust Fund, or Medicare Part A, which helps pay for services such as inpatient hospital care, will be able to pay scheduled benefits until 2028, two years later than reported last year. At that time, the fund’s reserves will become depleted and continuing total program income will be sufficient to pay 90 percent of total scheduled benefits.

• The Supplementary Medical Insurance (SMI) Trust Fund is adequately financed into the indefinite future because current law provides financing from general revenues and beneficiary premiums each year to meet the next year’s expected costs. Due to these funding provisions and the rapid growth of its costs, SMI will place steadily increasing demands on both taxpayers and beneficiaries.

• For the sixth consecutive year, the Trustees are issuing a determination of projected excess general revenue Medicare funding, as is required by law whenever annual tax and premium revenues of the combined Medicare funds will be below 55 percent of projected combined annual outlays within the next 7 fiscal years. Under the law, two such consecutive determinations of projected excess general revenue constitute a “Medicare funding warning.”  Under current law and the Trustees’ projections, such determinations and warnings will recur every year through the 75-year projection period.   

Oh, and remember the hefty increase in the Part B premiums for 2022? It's going to be rolled back-just not this year.

[T]he Centers for Medicare & Medicaid Services (CMS) released a report that recommends cost savings from lower-than-expected Medicare Part B spending be passed along to people with Medicare Part B coverage in the calculation of the 2023 Part B premium. Earlier this year, Department of Health and Human Services (HHS) Secretary Xavier Becerra instructed CMS to reassess the 2022 Part B premium amount in response to a price reduction for Aduhelm™, a monoclonal antibody directed against amyloid for use in treating Alzheimer’s disease. Given the information available today, it is expected that the 2023 premium will be lower than 2022. The final determination will be made later this fall

 

Stetson Law Hiring for 3 Entry Level Tenure Track Faculty

Stetson is seeking 3 entry level tenture track faculty for Fall 2023 for several subject areas.  The ad follows.

POSITION: TENURE-TRACK PROFESSOR OF LAW

STETSON UNIVERSITY COLLEGE OF LAW seeks to fill at least three entry-level tenure-track positions.  While our needs are flexible, we are particularly focused on Contracts, Torts, and Legal Research and Writing, as well as the areas of the Uniform Commercial Code, Professional Responsibility, Intellectual Property (emphasis on Patent Law), and Health Law. We may also have a need for Spring 2023 visitors in Legal Research and Writing and Torts. Other doctrinal areas may be considered depending on our developing institutional needs.

Located in Florida’s Tampa Bay area, the nation’s nineteenth largest metro area, Stetson was established in 1900 and is Florida’s oldest law school. Our main campus is in Gulfport, just outside St. Petersburg. We also have a part-time program with classes on both the main campus and our satellite campus in downtown Tampa. Stetson has earned a national reputation for its advocacy program, which is ranked #3 in U.S. News and World Report, and its elder law and higher education programs, with Centers for Excellence in Advocacy, Elder Law, and Higher Education Law and Policy. Stetson also has achieved a national reputation in legal writing, with its legal writing program also ranked #3 in the nation by U.S. News and World Report. Stetson is the home for the Institute for the Advancement of Legal Communication, the Institute for Biodiversity Law and Policy, and the Veterans Law Institute.

Stetson nurtures a vibrant intellectual community, situated on a beautiful campus. We encourage potential applicants to visit our website at https://www.stetson.edu/portal/law/ to learn more about our school, our community, and our programs. The law school is a part of Stetson University, which is located in DeLand, Florida, approximately three hours from the law school. The University features include a College of Arts and Sciences, a School of Music, and a School of Business Administration, the latter of which supports the law school’s JD/MBA program.

Stetson encourages applications from women, persons of color, LGBTQ+ candidates, and others who will contribute to our stimulating and diverse cultural and intellectual environment. Applicants must have a strong academic record and be committed to outstanding teaching and scholarship. Stetson’s Equal Employment Opportunity policy is available at https://www.stetson.edu/administration/human-resources/media/hotline/eeo-non-discrimination.pdf.

SALARY: Salary is competitive

STARTING DATE: August 2023

APPLICATION:

Applicants should send a cover letter indicating teaching and scholarly interests, a current curriculum vitae, and contact information for at least three professional references to Professors Jason Palmer and Rebecca Morgan at [email protected] or by standard mail to Professors Palmer and Morgan at Stetson University College of Law, 1401 61st Street South, Gulfport, FL 33707. The Faculty Appointments Committee will continue to review applications until positions are filled.

Roundup of Articles from May

Having not blogged in a while, I have a few articles in my inbox from May that I thought at least deserved a mention.  (The titles are pretty self-explanatory). Some are more feel-good stories (which we can all use right now) and others are more serious.  Read when you have time.

1.   During the Omicron Wave, Death Rates Soared for Older People.

2.   ‘Grandfluencers’ Are Sharing a New Vision of Old Age. On TikTok, the over-65 set is thriving.

3. These 90-Year-Old Runners Have Some Advice for You

4. CMS Unveils More User-Friendly Medicare Website

5. Government watchdog: 1 in 4 older Americans on Medicare harmed during hospital stay

6. V.R. ‘Reminiscence Therapy’ Lets Seniors Relive the Past

7. States with the Most Improved Outlook for Older Adults (apologies to Morris Klein who sent me the link back in May).

Long COVID Symptoms Not Always Caught With Elder Patients

A couple of weeks ago, my colleague and friend Mark Bauer sent me this article from the Washington Post, Long covid symptoms are often overlooked in seniors. According to the article, there are "millions of older adults who have grappled with long covid — a population that has received little attention even though research suggests seniors are more likely to develop the poorly understood condition than younger or middle-aged adults."

Long covid refers to ongoing or new health problems that occur at least four weeks after a covid infection, according to the Centers for Disease Control and Prevention. Much about the condition is baffling: There is no diagnostic test to confirm it, no standard definition of the ailment and no way to predict who will be affected. Common symptoms, which can last months or years, include fatigue, shortness of breath, an elevated heart rate, muscle and joint pain, sleep disruptions, and problems with attention, concentration, language and memory — a set of difficulties known as brain fog.

The article quotes from two recent studies about long COVID and elders and notes some reasons why it can be more difficult to diagnosis it among elders.  According to one expert in geriatric medicine, "[t]he challenge is that nonspecific symptoms such as fatigue, weakness, pain, confusion and increased frailty are things we often see in seriously ill older adults. Or people may think, ‘That’s just part of aging,’ ”   The correlation between COVID and dementia development is also discussed in the article, along with the potential development of more severe health problems.

This is a complex disease that all of us should take seriously.

Will Medicaid Tie Quality Care to the Funds?

According to an article in Kaiser Health News about a month ago, Medicaid Weighs Attaching Strings to Nursing Home Payments to Improve Patient Care.

The Biden administration is considering a requirement that the nation’s 15,500 nursing homes spend most of their payments from Medicaid on direct care for residents and limit the amount that is used for operations, maintenance, and capital improvements or diverted to profits.

If adopted, it would be the first time the federal government insists that nursing homes devote the majority of Medicaid dollars to caring for residents.

The strategy, which has not yet been formally proposed, is among several steps officials are considering after the covid-19 pandemic hit vulnerable nursing home residents especially hard. During the first 12 months of the pandemic, at least 34% of the people killed by the virus lived in nursing homes and other long-term care facilities even though residents of those facilities make up fewer than 1% of the U.S. population.

CMS has asked for public comment. The article discusses the position of supporters and opponents of the proposal.

Population Continues to Age

That title sounds like a no-brainer, doesn't it? A recent Washington Post story, U.S. continues to get older and more diverse, new estimates show, is about the recently released Census report.

Since 2000, the national median age has increased by 3.4 years to 38.8, with the largest single-year gain of 0.3 years coming in 2021, the year after the coronavirus pandemic hit, according to the bureau’s new 2021 population estimates, an annual data set that is used to fine-tune and update existing statistics.

The birthrate nationwide has been declining, and decreased immigration levels have accelerated the decline.

Between 2020 and 2021, 47 states and the D.C. saw an increase in median age; only Montana, New Hampshire, and West Virginia had no change in median age.

The Northeast was the oldest region in 2021, with a median age of 40.4, followed by the Midwest (39.0), the South (38.6) and the West, which saw the largest increase, up 0.3 years to 37.7, the bureau said.

The full Census report is available here.

Will Congress Pass Medicare Drug Negotiated Pricing?

Last week Roll Call reported that the "Senate draft[ed] [a] last-ditch drug pricing plan ahead of midterms." This would allow "Medicare [to] negotiate prices directly with manufacturers for some prescription drugs ahead of the midterm elections, according to a summary of the plan obtained by CQ Roll Call."  This was an integral part "of Democrats’ sweeping social spending and climate bill after intra-party divisions killed the original legislation" the article reports. The article describes the proposal.  Since there's only about 3 weeks before the August recess, we'll know the outcome soon.

Podcast on Quality SNF Care

The National Consumer Voice for Quality Long-Term Care has a podcast on Pursing Quality Long-Term Care. Here is a short description of the podcast: "Long-term care is or will be a fact of life for many of us and our loved ones as we age. We all deserve care – whether in the home or in a long-term care facility – that meets the highest of standards, enhancing quality of life and ensuring the protection of rights."  You need iTunes to listen. This is one in a series of topical podcasts, which you can access here.

 

Planning Housing for Old-Old Age

My friend and colleague, Mark Bauer, sent me the link to this article, How to design homes for life well beyond 100. According to the article, 

The world is getting older. By 2050, the global population of people in their 80s will be three times what it is today. According to the Stanford Center on Longevity, half of all the 5-year-olds currently living in the U.S. can expect to make it into their 100s. Harvard Medical School aging researcher David Sinclair suggests that the first person to live to age 150 has already been born.

It’s too early to predict all the ways that longer lives will change society, but at least one industry is starting to make some guesses. The developers, designers, and operators of senior housing are thinking about and planning for how these demographic shifts will affect their businesses and the services they provide.

To get ahead of the curve, some are designing their facilities for people who will technically be seniors for more than 40 years. They’re learning from communities around the world where people tend to live the longest and reconsidering the golf courses and bingo halls that were once central leisure activities. They’re also trying to design features that enable people to be healthy and active as long as possible.

Here is an intriguing thought from the article-there could be 3 generations of elders from the same family living in the same housing complex! It's a thought-provoking and informative article!