Elder Law Prof Blog

Needing LTC but Unable to Afford It

The New York Times ran an article recently that doesn't bode well for many elder Americans.  Many Americans Will Need Long-Term Care. Most Won't be Able to Afford It reviews what is referred to as

the middle-class bind ... [where the elder has t]oo much money to qualify for Medicaid or subsidized housing, but not enough to pay for long-term care, an industry that has primarily pursued the well-off. ...

A recent analysis in Health Affairs, pointedly titled “The Forgotten Middle,” investigated how many middle-income seniors will be caught in that bind. The numbers were grim.

Using data from the national Health and Retirement Study, including personal income and assets and health status, the researchers defined the middle-income cohort as Americans from the 41st to the 80th percentile in terms of financial resources....

In 2029, for people 75 to 84 (ages when they’re likely to need long-term care), that would mean access to about $25,000 to $74,000 a year in current dollars. Over age 85, the middle-income category extends to $95,000.

The projection is that two-thirds are going to need some type of long-term care, yet "more than half will be unable to pay assisted living fees and medical costs in 2029, the study found." Even those owning a home aren't as house-rich as they may think.  Plus this group has a lot of debt, and not that much in savings.

Consider this:

The United States, unlike many Western democracies, has never created a broad public program covering long-term care. Medicare pays for doctors, hospitals, drugs and short-term rehab after hospitalization — not for independent or assisted living.

That could change one day — imagine a new Medicare Part LTC — but “that will be incredibly difficult to achieve politically,” [said one expert].

Policy types instead suggest more incremental changes by both government and industry. Perhaps Medicaid could cover seniors with slightly higher incomes, or modify its regulations to include housing costs along with health care.

Florida is #1.... in Fraud Reports

There are a lot of great things about Florida and a lot of wacky things (don't believe me about the wacky things? check out "A Florida Man") One of the sad things recently about Florida is our #1 ranking for fraud in the U.S. 

Security.org crunches the numbers from the Federal Trade Commission and comes up with a report on the common frauds by state. In addition to the frauds by state, they also report on the top scams for the year. The #1 scam in the U.S. for the last year is impostor scam, followed by debt collection, identity theft, telephone/mobile sales, catalog/shop-at-home, banks/lenders, credit info, the old standard--lotteries, cars and internet.

So when I looked at Florida, here we are ranked #1 in the nation for fraud and other reports according to the Consumer Sentinel Network Data Book 2018  (issued by the FTC in February 2019).  There's a lot of good info in the Data Book, beyond individual state rankings.

Here's the executive summary from the Data Book

Overview

During 2018, the Consumer Sentinel Network took in nearly 3 million reports, an increase from 2017. - Fraud: 1.4 million (48% of all reports) - Identity theft: 444,602 (15%) - Other: 1.1 million (38%).

Imposter Scams are the top report category in 2018 (18% of all reports). Debt collection reports declined by 24% percent in 2018 (16% of all reports) and moved to #2. Identity theft (15% of all reports) rounds out the top three reports to Sentinel.

Fraud

There were over 535,000 imposter scam reports to Sentinel. Nearly one in five of those also reported a dollar loss, totaling nearly $488 million lost to imposter scams. These scams include, for example,romance scams, people falsely claiming to be with the government, a relative in distress, a well-known business, or a technical support expert, to get a consumer’s money.

Of the 1.4 million fraud reports, 25% indicated money was lost. In 2018, people reported losing nearly$1.48 billion to fraud – an increase of $406 million over what consumers reported losing in 2017.

The median loss for all fraud reports in 2018 is $375. The median individual losses were highest in these fraud categories: - Mortgage Foreclosure Relief and Debt Management ($1,377) - Business and Job Opportunities ($1,304) - Foreign Money Offers and Counterfeit Check Scams ($1,214).

Telephone was the method of contact for 69% of fraud reports with a contact method identified. Only eight percent of those people reported losing money to the scammer – but that 8% reported an aggregate loss of $429 million, and an $840 median loss.

Wire transfers continue to be the most frequently reported payment method for fraud, with a reported aggregate loss of $423 million.

Of people who reported their age, those aged 20-29 reported losing money to fraud in 43% of reports filed with the FTC, while people aged 70 – 79 reported losing money in 15% of their reports and people80 and over reported losing money in just 13% of their reports. But when they did experience a loss,people aged 70 and older reported much higher median losses than any other age group.

Identity Theft

Credit card fraud tops the list of identity theft reports in 2018. The FTC received more than 167,000reports from people who said their information was misused on an existing account or to open a new credit card account.

Military

Military consumers reported more than 59,000 fraud complaints, including over 36,000 imposter scams that cost them $34 million in 2018. Imposter scams were the largest single category of reportsfrom military consumers.

Top States

The states with the highest per capita rates of reported fraud in 2018 were Florida, Georgia, Nevada,Delaware, and Maryland. For reported identity theft, the top states in 2018 were Georgia, Nevada,California, Florida, and Texas.

 

 

Correlation to Medicare Ratings & Staffing

Kaiser Health News ran a story, Short-Staffed Nursing Homes See Drop In Medicare Ratings.  "In its update in April to Nursing Home Compare, the Centers for Medicare & Medicaid Services gave its lowest star rating for staffing — one star on its five-star scale — to 1,638 homes. Most were downgraded because their payroll records reported no registered-nurse hours at all for four days or more, while the remainder failed to submit their payroll records or sent data that couldn’t be verified through an audit." The payroll records analyzed provide a good picture of various nursing homes and how they comply with the regulations. "CMS has been alarmed at the frequency of understaffing of registered nurses — the most highly trained category of nurses in a home — since the government last year began requiring homes to submit payroll records to verify staffing levels." In addition KHN has an interactive tool, Look-Up: How Nursing Home Staffing Fluctuates Nationwide.

Tech to Block Spam Calls

Phone companies are developing tech that will block spam calls. Yes, please and right away! (BTW, how do the spammers know the most inopportune time to call?) The New York Times explains the work in this article, Phone Companies Are Testing Tech to Catch Spam Calls. Let’s Hope It Works.

This data ought to frighten you:  "[t]he seemingly endless stream of robocalls reached a new monthly high of 5.23 billion nationwide in March, according to the call-blocking service YouMail. Some were spammy pitches for unwanted vehicle warranties or debt-relief services. Nearly half were straight-up scams. And there was often one common thread: They frequently came from somewhere other than they said they did."

But the article tells us there is hope for us.  "New technology is providing a glimmer of hope that, someday, you might be able to safely pick up your phone again. Mostly, you’ll now be more likely to know callers are who they say they are." But wait, now for some bad news. "[D]on’t expect any silver bullets that will put an end to robocalls. Pending regulatory changes could even add to the flood." 

The anti-spoofing technology is already being used by T-Mobile ("known by the acronym Stir/Shaken, a tortured reference to James Bond and martini preparation — in January, although it’s currently compatible only with certain devices. ") AT&T and Comcast have been doing some work on caller verification and Verizon should have theirs available by early fall.

But wait-do you have a land-line? This need tech won't help you then. There are also limits on tracing calls from abroad.  Congress is also helping.

A Senate bill that would establish a deadline has gained bipartisan traction. The Traced Act, introduced by Senators John Thune, Republican of South Dakota, and Edward J. Markey, Democrat of Massachusetts, passed a committee vote this month. Along with stiffening penalties and giving the F.C.C. more time to punish perpetrators, the bill would require all voice service providers — including those over the internet, such as Skype and Google Voice — to adopt call authentication technology within 18 months of the bill’s enactment. 

Watch for new regs coming from the F.C.C., especially the one on the definition of auto-dialers, the article explains. There is the potential for opening us to even more spam calls.  Here's how the two sides see that issue

“If they define auto-dialer the way the industry wants it defined, it will be so narrow it won’t cover any of the auto-dialers out there,” said Margot Saunders, senior counsel at the National Consumer Law Center. “The scourge of robocalls will skyrocket.”

The F.C.C. said those concerns were speculative. The agency has solicited public comments on the issue twice lastyear, but declined to say how long it might take to come up with a new definition. A spokesman said the commission “will continue to combat all illegal robocalls with every tool we have.”

I don't know if you do like I do now--when my phone rings-if I don't recognize the number I don't answer it. Is that how we have to operate now? Do the folks at the F.C.C. get all of these spam calls too?

Pentagon Officials Point to Need for Elder Care at Guantanamo Bay

In January 2018, Donald Trump issued an order to keep the detention facility at Guantanamo open, with the potential for the Pentagon to add new prisoners. Following that decision, Pentagon officials, described in some accounts as being "unusually frank," discussed the need for long-term care facilities for aging prisoners who will grow old and frail.  From an article in The Military Times:

The Pentagon was investing in upgrades at the Navy base under President Barack Obama, whose push to shutter the detention center couldn’t overcome opposition in Congress. But those projects, including the $150 million barracks, were funded with the understanding that they could be used by the personnel of the Navy base that hosts the detention center. Now they are viewed as part of a broader effort to be able to operate the prison for many years to come.

 

“Now my mission is enduring,” said Adm. John Ring, commander of the task force that runs the jail. “So I have all sorts of structures that I have been neglecting or just getting by with that now I’ve got to replace.” . . . 

 

Officials say Camp 7 is in need of major repairs, with cracking walls and a sinking foundation, and it is not suitable to hold men who will likely be in custody for many years to come. The new unit, which would be known as Camp 8, would have cell doors wide enough for wheelchairs and hospice beds and communal areas so elderly prisoners could help each other as they grow old.

For more, read the June 2018 article, "U.S. Military Plans for Future at Guantanamo Because of Trump."

I drafted the above language for this post on Sunday, April 28, after reading a more recent, more detailed story in another publication, Defense One, titled "Guantanamo Is Becoming A Nursing Home for its Aging Terror Suspects."  

From that article we hear again from Admiral John Ring, the commander in charge of the Guantanamo Task Force:

The aging population at Gitmo poses unique challenges for Adm. John Ring, the latest in a string of officers who have led the prison on one-year deployments. Defense attorneys say many detainees suffer the ill effects of brutal interrogation tactics now considered to be torture. The United States has committed to providing the same health care to the remaining detainees that it provides to its own troops, as required by the Geneva Conventions. But the secure medical facilities built to treat the detainees — Ring calls them “guests” — can’t cope with every kind of surgery geriatric patients typically need, and weren’t built to last forever. Congress has prohibited the transfer of detainees to the continental United States, which means any treatment they receive will have to take place at a remote outpost on the tip of Cuba.

 

“I’m sort of caught between a rock and a hard place,” Ring said. “The Geneva Conventions’ Article III, that says that I have to give the detainees equivalent medical care that I would give to a trooper. But if a trooper got sick, I’d send him home to the United States.

So, it was with interest that I read a third new story, on Monday morning, April 29, reporting that Admiral Ring has been discharged from his post, with the briefest of explanation, "loss of confidence in his ability."  See  The New York Times article: Guantanamo Bay Prison Commander Has Been Fired. 

SSA & Medicare Trustees Reports

I hope you know by now that the SSA and Medicare Trustees have released their annual reports. The news is about what you would expect, if you follow the news on their annual reports. One might say that the SSA Trustees gave us good news this year. Social Security Combined Trust Funds Gain One Year Says Board of Trustees. Disability Fund Shows Strong Improvement—Twenty Years projects that the fund will "run out of money" after 2034, meaning we have gained a year. "Running out of money" means that starting in 2035, SSA will pay 80% of benefits, rather than 100%.  For years, I've explained to students about the SSA Trust Fund and the Trustees Report. This year it dawned on me, when talking about the folks affected by the short fall, I'm part of those who will be affected.  I'm no longer teaching something abstract. I know people, including myself and my colleagues, who will be in that group absent action by Congress.  The SSA Trustees report is available here. With Medicare, the trustees really didn't have good news for us. Medicare Trustees Report shows Hospital Insurance Trust Fund will deplete in 7 years tells us "that the HI Trust Fund will be able to pay full benefits until 2026, the same as last year’s report."  The Medicare Trustees report is available here.

Hello Congress??

 

Scams, Scams & Robocalls

Ok, so scams.... Ugh.  Here's a couple of new ones, now we are past tax season and don't have to worry about the fake-IRS calling us for a couple of days.  First, using DNA to commit scams and frauds. Scammers May Be Using DNA Testing to Defraud Medicare and Steal Identities reports Bloomerberg. "Authorities in several states are warning about an alleged scam in which people visit senior-living communities and low-income neighborhoods, offering to perform DNA tests and collecting information from people in government health programs. ... The alleged DNA-testing scams appear to be a new twist on an old tactic, in which people are tricked into giving away personal information or participating in medical services they don’t need. Perpetrators of such schemes can bill the government for unneeded medical tests and procedures, or use the information they collect — such as Medicare and Medicaid identification data — to commit identity theft and fraud."  I guess you can't get much more personal info than someone's DNA. Yikes!

Next, the New York Times reported that falling prey to scams may be a red flag sign of dementia. Senior's Weakness for Scams May Be Warning Sign of Dementia.

"New research suggests seniors who aren't on guard against scams also might be at risk for eventually developing Alzheimer's disease. ... Elder fraud is a huge problem, and Monday's study doesn't mean that people who fall prey to a con artist have some sort of dementia brewing. ... But scientists know that long before the memory problems of Alzheimer's become obvious, people experience more subtle changes in their thinking and judgment. Neuropsychologist Patricia Boyle of Rush University's Alzheimer's disease center wondered if one of the warning signs might be the type of judgment missteps that can leave someone susceptible to scams."

Although "[t]he study can't prove a link between low scam awareness and impending decline in thinking and memory," results point us to a need for more research. 

There are already a number of prevention efforts in existence, but yet, these crimes keep occurring. One more recent innovation is referenced in the article.  "[T]he rise in elder fraud has reached such a level that investment firms now are supposed to ask customers for the contact information of a "trusted person" they can alert if they suspect a case of financial exploitation. Just last week, federal agents broke up a Medicare scam that sold unneeded orthopedic braces to hundreds of thousands of seniors. And every tax season the government warns people not to fall for phone calls from IRS impostors — that agency won't call for payment."

And let's not get started on robocalls...  Oh, ok since I mentioned them, the current issue of Consumer Reports newsletter focuses an article on apps designed to block robocalls.  How to Protect Yourself From Robocalls shares the results of a survey of robocall blocker apps used by readers. Check them out and use one that works best for you. Have you reached the point where you no longer answer the phone if you don't recognize the number? I have.

 

VA Nursing Homes-Call For Action

Last week The Hill ran an opinion piece, Patients in VA nursing homes are suffering — Wilkie needs to take responsibility. Responding to stories about poor care, the Secretary of the VA "responded that VA’s nursing homes 'care[ ] for sicker and more complex patients in its nursing homes than do private facilities.'" Although that may be true, the article notes, that is not a justification for poor care and the reported issues "are easily preventable and are not complex problems."  This follows the VA release of "a series of inspection reports detailing deficiencies in 52 out of 99 nursing home care facilities that caused “actual harm” to veterans."  Those numbers should give everyone pause.  The author calls for more "accountability [from the VA] by accepting responsibility for the problems outlined in them rather than making excuses and deflecting." Distinguishing between accepting responsibility and blame, the author offers that "[a] culture of responsibility is a greater asset to an organization like VA than the things we most often hear about, such as an increased budgets or legislative changes."

Click here to read the USA Today story about the deficiencies found in the VA nursing homes.

 

Nursing Home Oversight-Two Updates

Following up on Katherine's important post, I was noticing a couple of news items regarding nursing home regulation I wanted to share.  A couple of weeks ago Bloomberg Law ran this article, Nursing Homes Want Care Disputes Kept Out of Court to Curb Costs. The article focuses on the use of pre-dispute arbitration clauses in nursing home admission contracts. You may recall that CMS was going to ban their use but the current administration changed directions. "The White House Office of Management and Budget is reviewing a Health and Human Services regulation that would allow nursing homes that receive Medicaid and Medicare funding—which is nearly all of them—to enforce those “pre-dispute” arbitration clauses. The Trump administration proposed the change in June 2017."

It's no surprise when I tell you that there are those supporting the use of pre-dispute arbitration clauses and those that oppose them.  AARP's legislative policy arm has opposed the current administration's position on their use, arguing "that the provisions of [Trump’s] proposed rule would very likely have dangerous and harmful impacts on nursing home residents, as well as their families.” 

As the use of mandatory pre-dispute arbitration clauses in contracts grows, there is some push back. "Arbitration clauses are commonplace in contracts for cellphones, credit cards, gym memberships, and other services, but there’s a growing movement to limit their use. Last month, House Democrats introduced the Forced Arbitration Injustice Reversal Act, which would ban mandatory arbitration clauses in consumer, employment, and other contracts." 

Congress, at least in 2017, and the current administration seem to be in favor of the use of the clauses, since in 2017 the Republican members of Congress "voted to repeal a Consumer Financial Protection Bureau rule banning mandatory arbitration clauses in financial contracts" which the President signed into law.

Admittedly, there are advantages to arbitration for certain kinds of cases.  Whether they are appropriate for resolution of cases involving nursing home residents is one of those "agree to disagree" issues for many.

Then last week, the Washington Post published an opinion, The hidden victims of Trump’s deregulatory agenda: Nursing home residents looks at the impact of the changes from the administration, specifically "[t]he number of per-day fines plummeted. The ban on mandatory arbitration was blocked. [The President] even delayed the enforcement of new health and safety requirements by 18 months, much to the delight of the nursing home industry."

Regarding the drop in fines, so what does this mean? The author says this means "less accountability for nursing homes that treat their residents poorly. The Kaiser Family Foundation recently published an analysis that found that under the Trump administration, the average fine levied against nursing homes that have endangered or injured residents dropped from a high of $41,260 in 2016 to $28,405 in the first quarter of 2018. That may not look like an enormous dip, but that average likely reflects a shift back toward levying one-off fines for violations."

CMS disagrees. Although the amount of penalties may have decreased, they point out that the number of fines being issued has gone up.  The author takes a contrary view, " the Kaiser analysis found that the administration has issued fewer penalties in cases in which nursing homes put residents in immediate jeopardy of harm. And the fines CMS did issue averaged 18 percent less than the ones levied at the end of the Obama administration."

For those Special Focus Facilities, one expert offers that "the Trump administration has largely pulled back its enforcement of them, issuing increasingly small fines even though the government continued to cite them for serious violations, according to [the expert's] most recent analysis of CMS data in January."

This is an important issue and one that is far from being resolved. So, stay tuned.

Bye Bye Donut Hole

The Medicare Part D donut hole closed this year (yay) and although it may be gone, it's not forgotten.

Due to federal legislation, the donut hole is closed for brand-name drugs in 2019. This closure means that [that a beneficiary] will be responsible for 25% of the cost of ... brand-name drugs in this coverage period. Although the donut hole for brand-name drugs has closed, [the beneficiary] may still see a difference in cost between the initial coverage period and the donut hole. For example, if a drug’s total cost is $100 and [the beneficiary] pay[s] [the] plan’s $20 copay during the initial coverage period, [the beneficiary] will be responsible for paying $25 (25% of $100) during the coverage gap. The donut hole will close for generic drugs in 2020, at which point [a beneficiary] will be responsible for 25% of the cost of ...  generic drugs.

Kaiser Health News last week ran a story about the demise of the donut hole and the out of pocket costs beneficiaries still face. Doughnut Hole Is Gone, But Medicare’s Uncapped Drug Costs Still Bite Into Budgets  focuses on the need for an annual cap on out of pocket drug spending by telling the stories of some of those who have significant out of pocket costs even with the elimination of the donut hole. "Legislative changes have gradually closed the doughnut hole so that, this year, beneficiaries no longer face a coverage gap. In a standard Medicare drug plan, beneficiaries pay 25 percent of the price of their brand-name drugs until they reach $5,100 in out-of-pocket costs. Once patients reach that threshold, the catastrophic portion of their coverage kicks in and their obligation drops to 5 percent. But it never disappears."

Although none of the Medicare programs have caps on spending, the article illustrates that those enrolled in original Medicare can purchase Medigap policies, which do not extend to Part D  prescription drug plans.  There's a great chart in the article that compares the existing Part D program with proposed legislation which illustrates the effect of the recent proposal to cap the annual amount. 

Stay tuned and stay healthy.

Broken System(s) and Good People Who Still Care

For those who read this Blog regularly, thank you.  Especially as I have been leaving the bulk of recent postings to my wonderful  blogging colleague and all-round elder law guru, Rebecca Morgan.  Thank you most of all, Becky! 

It is early morning on a Sunday as I type this.  The Arizona sun is not quite above the eastern horizon.  A calm morning after several days ...  okay, I confess, weeks ... of small troubles.  I had time to read The New York Times, and there it is once again, an article with a title and content that seem right on point for what I am pondering:

Patients ‘Hit the Call Bell and Nobody Comes.’ Hospital Nurses Demand ‘Safe Staffing’ Levels.

For the last several weeks, my sister and I have been struggling to understand how best to help our mother in the latest part of her journey with dementia.  Recently she fell twice in single week, when rising before dawn and struggling to get dressed by herself.  She did not need to be up so early, but in a lifetime of early rising, it is hard to change. Learning new routines, such as calling for help, is never easy, but especially so when memory and awareness are impaired by dementia.  Her second fall resulted in what Mom had long feared most, a fear that will resonate for many people.  She fractured her hip, as well as a few annoying ribs.  

This put the three of us, my sister, my mother and me, squarely in the middle of doctor consultations, hospitals, rehabilitation centers, home care agencies and a search for alternatives for care.  Do you have a mental image of Queen Elizabeth in London?  Perhaps you have seen photos or news footage of her in recent weeks, walking with determination and carrying her purse, as she attends to her royal duties?  Well, Queen Elizabeth and our mother are the same age and seem to have very similar abilities to persevere.  We think of our mother as a slightly smaller version of the Queen, perhaps walking a bit slower although with equal commitment to the task, complete with her own favorite handbag.  Or she was until the recent set of events.

At age 93, Mom sailed through surgery to stabilize her fractured hip, and even did pretty well during the first phase of recovery in the hospital.  One small blessing for Mom is that she has no memory of the falls, no recollection of the surgery, and no memory of pain. Thus she's surprised when it "hurts" to try to stand, much less walk.  Of course, both pain and understanding of what pain signifies, are important reminders of the need to take things slow.  

We've done the hospital surgery stay "thing" before with Mom, and we've learned to treat such events as a marathon, rather than a sprint.  We've learned, for example, that our mother's agitation after surgery makes IVs difficult and that any form of narcotic pain medication is likely to trigger days of vivid and disturbing hallucinations. For pain, fortunately tylenol is enough with Mom.  We work hard to come up with a way for someone (usually my sister, until I can fly in) to be there each night, when we know hospital staffing levels can be low and call buttons may not be answered quickly. We know that without being there, when Mom does sometimes complain of pain, we will to need to remind the staff that tylenol is usually sufficient.

We try to rotate nights.  My sister is a pro, and after weeks of my somewhat frantic naps on airplanes, I've become pretty good at falling into a wakeful sleep mode in an upright position.  Staying overnight in a hospital is disorienting for the healthiest person and much more so for someone like my mother who cannot understand why this "hotel" has staff members that keep waking her up at night to take her temperature and hand her medication to swallow.  I will be forever grateful to the nurse who, after my mother spit a full mouthful of water and the medicine back in her face, nonetheless returned promptly to help throughout the third shift, still offering smiles and kind words.  The nurses who advocate for change in The New York Times article have it right -- "safe staffing levels" are one key to sound hospital care; only with adequate staffing can nurses be expected to keep working in such taxing circumstances.

The next decision was about where to go after the hospital. One option presented by the discharge planner was to go to a skilled nursing facility, a/k/a nursing home.  We had previewed a wide range of places and we already had a list of possibilities. But we were pretty confident Mom could tolerate physical therapy, and therefore, after consultation, we opted for a facility that specialized in rehabilitation.  

One complication:  The rehab facility's admissions director said that they were not willing to take someone with dementia unless the family made sure there was 24/7 assistance during periods of confusion and, they emphasized, to keep her from wandering.  With gratitude, we accepted a brochure offered by the admissions director for a local home care agency that they had worked with before.  My sister, a true angel, and I, very much a mortal, knew we couldn't do this alone.

And thus began a strange variation on the "Bell Rings; Nobody Comes" theme of The New York Times article about hospital care.

The first yellow flag was when one of the line staff, a certified nursing assistant (CNA) at the rehab facility, who heard we were hiring companions from an agency, commented, "Well, okay, if you want to do that, but just so you know, these people don't do a darn thing.  They won't lift a finger to help."  I didn't know what to say; I think I said something like, "Well, let us know if there is a problem."

The "problem" emerged quickly.  Companions from the home care agency said the rehab staff were not responding to call buttons when help was needed for our mother.  The rehab staff were complaining that the companions didn't provide any help.   I talked to an administrator at the rehab center.  He assured me that their policy was for staff  to respond promptly to call buttons and that he would remind the staff that a family member or hired companion was doing "the right thing" by using the call buttons to seek help.  

But the reports continued, even as Mom began to recover more function, and thus actually needed more help in key tasks because she was more mobile.  Different companions and even friends reported that the CNAs at the rehab center would, for example, help our mother to the bathroom toilet, but then would refuse to stay until she finished.  Some reported the CNA turning to the agency's companion and saying with disdain, "You should handle it from here."  

I tried talking again with Rehab's administrators, this time the director of nursing.  She was also quick to reassure me that we were not wrong to ask the rehab staff to assist our mother in the bathroom and to remain with her till she finished, as our mother was still unable to rise on her own and also could not or would not use the pull cord.  She thought the most recent report was about one new rehab employee, who may not yet understand his or her role.

But the reports continued.  One report came from a friend visiting Mom.  She noticed buzzers ringing endlessly on Mom's floor, even when available staff were chatting nearby.  I tried talking with the management staff again.  At one point, the home care agency actually swooped in and removed a companion we hired to help our mother, after the rehab center complained to them that the companion was complaining "too loudly" about the rehab staffing and lack of coordination with staff.  In response to the turmoil my sister ended up taking another night shift in rehab (after a long-day as an administrator for a charter school).  I started planning another flight to Arizona.

I slowly began to realize that this was not a problem that could be "fixed" with polite requests or even more directly-worded complaints about staffing roles.   I learned:

• The direct care workers at the rehab center felt seriously over-worked and under-appreciated;
• The rehab center was often short-staffed, especially when employees called off on short notice; 
• The direct care workers resented the agency's companions "doing nothing" when an extra pair of hands, any hands, would have made their work easier;
• There was tension between the direct care workers, most of them CNAs, and the cehab Center's other "higher" staff, including nurses and shift supervisors;
• Family members of other patients were also concerned and confused about what to do about unevenness of care.  They weren't required to have a companion as their loved one did not have the dreaded "dementia." But their need for prompt assistance for loved ones recovering from car accidents, strokes, or major surgery was just as great.

A family member of another patient in rehab commented to me, "This is a broken system."  At first I thought she meant the Rehab Center.  But she clarified.  "This is just one part of a broken care system."  She meant that all of care is a broken system.

Continue reading

New Report from Consumer Financial Protection Bureau

The Consumer Financial Protection Bureau (CFPB) released a new report at the end of February, Suspicious Activity Reports on Elder Financial Exploitation: Issues and Trends.

Here is a summary of the report

Since 2013, financial institutions have reported to the federal government over 180,000 suspicious activities targeting older adults, involving a total of more than $6 billion. The reports provide unique data on these suspicious activities, which can enhance ongoing efforts to prevent elder financial exploitation and to punish wrongdoers.

This report presents the findings of a study of elder financial exploitation Suspicious Activity Reports (EFE SARs) filed with the federal government by financial institutions such as banks and money services businesses between 2013 and 2017. This is the first public analysis of EFE SAR filings since the Financial Crimes Enforcement Network (FinCEN), which receives and maintains the database of SARs, introduced electronic SAR filing with a designated category for “elder financial exploitation” in 2013. The findings provide an opportunity to better understand the complex problem of elder financial exploitation and to identify ways to improve prevention and response.

The full report is available here.

The key findings of the report provide some sobering data:

•SAR filings on elder financial exploitation quadrupled from 2013 to 2017. In 2017, elder financial exploitation (EFE) SARs totaled 63,500. Based on recent prevalence studies, these 2017 SARs likely represent a tiny fraction of actual incidents of elder financial exploitation.

•Money services businesses have filed an increasing share of EFE SARs.In 2016, money services business (MSB) filings surpassed depository institution (DI) filings. In 2017, MSB SARs comprised 58 percent of EFE SARs, compared to 15 percent in 2013.

•Financial institutions reported a total of $1.7 billion in suspicious activities in 2017, including actual losses and attempts to steal the older adults’ funds

•Nearly 80 percent of EFE SARs involved a monetary loss to older adults and/or filers (i.e. financial institutions).

•In EFE SARs involving a loss to an older adult, the average amount lost was $34,200. In 7 percent of these EFE SARs, the loss exceeded $100,000.

•When a filer lost money, the average loss per filer was $16,700.

•One third of the individuals who lost money were ages 80 and older.

•Adults ages 70 to 79 had the highest average monetary loss ($45,300).

•Losses were greater when the older adult knew the suspect. The average loss per person was about $50,000 when the older adult knew the suspect and $17,000 when the suspect was a stranger.

•Types of suspicious activity varied significantly by filer.When the filer was an MSB, 69 percent of EFE SARs described scams by strangers. DI filings, in contrast, involved an array of financial crimes, with 27 percent involving stranger scams.

•More than half of EFE SARs involved a money transfer. The second-most common financial product used to move funds was a checking or savings account (44 percent).

•Checking or savings accounts had the highest monetary losses. The average monetary loss to the older adult was $48,300 for EFE SARs involving a checking or savings account while the average loss was $32,800 for EFE SARs involving a money transfer.

•The suspicious activity reported in an EFE SAR took place, on average, over a four-month period.

•Fewer than one-third of EFE SARs indicated that the filer reported the suspicious activity to a local, state, or federal authority. Only one percent of MSB SARs stated that the MSB reported the suspicious activity in the SAR to a government entity such as adult protective services or law enforcement.

Read the entire report. The information is important.

Thanks to Julie Childs from the DOJ Elder Justice Initiative for alerting me to this new report.

Justice Department Announces Elder Fraud Sweep

On March 7, 2019, U.S. DOJ announced the biggest U.S. elder fraud sweep. Justice Department Coordinates Largest-Ever Nationwide Elder Fraud Sweep. Attorney General Focuses on Threats Posed by Technical-Support Fraud offers a look at the staggering amount of elder fraud.

The cases during this sweep involved more than 260 defendants from around the globe who victimized more than two million Americans, most of them elderly. [DOJ] took action in every federal district across the country, through the filing of criminal or civil cases or through consumer education efforts. In each case, offenders allegedly engaged in financial schemes that targeted or largely affected seniors. In total, the charged elder fraud schemes caused alleged losses of millions of more dollars than last year, putting the total alleged losses at this year’s sweep at over three fourths of one billion dollars.

Want to see the results of the sweep in your state?  Click here.

The sweep included tech support fraud, mass mailing fraud and  money mules.  Consumer education was also part of the effort,

[DOJ] and its law enforcement partners focused the sweep’s public education campaign on technical-support fraud, given the widespread harm such schemes are causing. The FTC and State Attorneys General had an important role in designing and disseminating messaging material intended to warn consumers and businesses.

Public education outreach is being conducted by various state and federal agencies, including Senior Corps, a national service program administered by the federal agency the Corporation for National and Community Service, to educate seniors and prevent further victimization. The Senior Corps program engages more than 245,000 older adults in intensive service each year, who in turn, serve more than 840,000 additional seniors, including 332,000 veterans. Information on Senior Corps’ efforts to reduce elder fraud can be found here.

Click here to read the full press release. The AG's remarks are available here.

Thanks to my colleague, Professor Podgor, for alerting me to the press releases.

Student Loan Debt Webinar

Mark your calendars for this upcoming webinar on student loan debts and elders, scheduled for January 29 at 2 est.  Here's a description of this free webinar:

A growing number of older adults are carrying more student loan debt than ever before. Many took loans for their own studies while some also borrowed or cosigned loans for a child or another person. Student loan repayment—or debt collection consequences following non-payment—can impede saving for retirement or making ends meet on a fixed income. Unfortunately, even Social Security benefits can be taken to repay defaulted student loans.  

This webcast will present the basics of student loan law and a framework for issue-spotting and solving common student loan problems. Topics covered during the webcast will include: identifying a loan type/status, making loan payments affordable, evaluating loan cancellation options, stopping involuntary debt collection activity, and curing default. 

To register, click here

 

 

More on Merit-Based ALJ Hiring

Health & Human Services has posted information on their blog about how they are implementing the new hiring process for ALJs. Establishing a New Merit-Based Process for Appointing Administrative Law Judges at HHS explains the new process, the reasons for it, and when it became effective.

HHS is announcing how the department will implement a new ALJ selection and appointment process. The department’s ALJs work for the Office of Medicare Hearings and Appeals (101) and the Departmental Appeals Board (13). The DAB also has seven administrative appeals judges and five Departmental Appeals Board members, and the new ALJ selection and appointment process will apply to these “comparable officials” as well.

The new HHS ALJ selection and appointment process - PDF is effective immediately and is described on the websites of the OMHA and the DAB.

This process is described in the post as merit-based and does not require consultation with anyone outside of the process.  The process is described in detail in a 4 page document from November, 2018, available here.

To understand the significance of this change, read my blog post from October 26, 2018 here.

Hebrew Home at Riverdale New York: Site for New Report on Medical Marijuana

Last week, I wrote about the possible use of medical marijuana for treatment of anxiety in patients with dementia, pointing to the importance of peer-reviewed studies.  This week, I learned of a new study on the use of medical marijuana at a nursing home, and when I read the study I was not surprised to learn the study had occurred at Hebrew Home at Riverdale in New York, a location I have come to associate with both research and thoughtful innovation.  Studies of medical marijuana are complicated by the disjunction in federal and state laws governing purchase and use.

From a study published in JAMDA, the official journal for the Society of Post-Acute and Long-Term Care Medicine, this description in a press release:  

In “Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life,” the authors described a medical policy and procedure (P&P) they implemented at their New York-based SNF for the safe use and administration of cannabis for residents with a qualifying diagnosis. To be compliant with state and federal statutes, policy requires that residents must purchase their own cannabis product directly from a state-certified dispensary.

 

After the program started in 2016, the facility provided educational sessions for residents and distributed a medical cannabis fact sheet that was also made available to family members. To date, 10 residents have participated in the program and seven have been receiving medical cannabis for over a year. Participants range in age from 62 to 100. Of the 10 participants, six qualified for the program due to a chronic pain diagnosis, two due to Parkinson’s disease, and one due to both diagnoses. One resident is participating in the program for a seizure disorder.

 

Most residents who use cannabis for pain management said that it has lessened the severity of their chronic pain. This, in turn, has resulted in opioid dosage reductions and an improved sense of well-being. Those individuals receiving cannabis for Parkinson’s reported mild improvement with rigidity complaints. The patient with seizure disorder has experienced a marked reduction in seizure activity with the cannabis therapy.

This study did not address cannabis as a treatment for symptoms of dementia-related anxiety.  For more, see Medical Cannabis in the Skilled Nursing Facility:  A Novel Approach to Improving Symptom Management and Quality of Life, published January 2019.  Interestingly, the authors are a medical doctor, Zachary J. Palace, and Daniel Reingold, who lists both a Masters of Social Work and a J.D. for his background. 

Hearing Loss: The Impact is More Than Loss of Hearing

Know anyone who has hearing loss?  Maybe you yourself suffer from hearing loss-and if not now, you may in the future. Hearing loss has ramifications beyond the loss of hearing. As the article in the New York Times explains in Hearing Loss Threatens Mind, Life and Limb "[n]ot only is poor hearing annoying and inconvenient for millions of people, especially the elderly. It is also an unmistakable health hazard, threatening mind, life and limb, that could cost Medicare much more than it would to provide hearing aids and services for every older American with hearing loss." Oh and the news doesn't get any better: "[t]wo huge new studies have demonstrated a clear association between untreated hearing loss and an increased risk of dementia, depression, falls and even cardiovascular diseases. In a significant number of people, the studies indicate, uncorrected hearing loss itself appears to be the cause of the associated health problem."

Those with age-related hearing loss can tell you it doesn't happen overnight.  In fact, because it "comes on really slowly, [it makes] it harder for people to know when to take it seriously...."  The article explains the correlation between hearing loss and the impact on the brain (fascinating yet scary). And in case you didn't know "hearing aids and accompanying services are typically not covered by medical insurance, Medicare included. Such coverage was specifically excluded when the Medicare law was passed in 1965, a time when hearing loss was not generally recognized as a medical issue and hearing aids were not very effective...." 

So, do a few things now: 1.  write your Congressperson about Medicare's coverage of hearing aids, 2. schedule an appointment to have your hearing testing and 3. turn down the volume on your devices.

Medical Marijuana for Treatment of Dementia Agitation

Months ago, when my family was considering alternatives for care of my mother as her health deteriorated and her home became increasingly unsafe, I was talking with different providers about the challenges of care when the individual is a heavy smoker (as my mother, at age 92, still was at the time).  There are few options, and most licensed facilities bar smoking completely or limit it to locations that are not workable for someone with impaired movement.  I joked with one provider that smoking cigarettes was prohibited but that Arizona had recently authorized medical marijuana.  Arizona Statutes Section 36-2801 permits medical marijuana for those with debilitating medical conditions, including "agitation of  alzheimer's disease." 

The provider laughed and said, "oh, we don't permit smoking of marijuana either." I wasn't up-to-date on the technology!  Apparently the preferred dispensation at that location was via "gummies."  If you google "marijuana gummies" you get a remarkable range of products.

In this brave new world of medical marijuana, I can see reasons for the interest, especially in the search for safe and effective ways to help individuals whose form of dementia is marked by severe agitation.  Can marijuana "take the edge off" in a safe way?  Can doses be monitored and evaluated appropriately?  Do "gummies" provide reliable or consistent doses of the active ingredient, most likely THC?  Can there be an associated positive effect -- improved appetite (the proverbial "munchies")?  Are there reporting mechanisms on the effects of use, especially in facilities that provide dementia care, that will help capture success rates and any risks?  What about individuals with dementia who suffer from both agitation and delusional thinking -- could medical marijuana potentially reduce one symptom but increase another?  Is the CDC tracking medical marijuana gummies or other products in the context of dementia care?  

The National Conference for State Legislatures (NCSL) maintains a website on state medical marijuana laws.  NCSL reported that as of 11/8/18, 33 states, plus D.C., Guam and Puerto Rico, have approved "comprehensive" public medical marijuana programs, with additional states allowing limited use of "low THC, high CBD" products in limited situations that are not deemed comprehensive medical marijuana programs.

In January 2017, the National Academies of Sciences, Engineering, and Medicine released a report based on review of "over 10,000 scientific abstracts" for marijuana health research, offering 100 conclusions related to health and ways to improve research. The conclusions are organized according to whether there is "conclusive or substantial" evidence, moderate evidence, or limited evidence about effectiveness or ineffectiveness of medical marijuana in a variety of contexts.  One conclusion suggests there is limited evidence that cannabis or cannabinoids are effective for "improving anxiety symptoms," while a separate conclusion states there is limited evidence that such substances are ineffective for "improving symptoms associated with dementia."  

I'm relatively new to review of literature associated with medical marijuana for dementia care/treatment, and welcome hearing from others who are aware of authoritative sources of information. (And just to be clear, this isn't a product we're considering for my mother!) I can see this topic becoming more important with time in our aging world, especially as additional sources of dementia-treatment evidence may become available. 

President Signs BOLD Infrastructure for Alzheimer's Act -- $100M Funding

On December 31, 2018, the President signed S. 2076.  The bill, with the somewhat unwieldy title of "Building Our Largest Dementia Infrastructure for Alzheimer's Act" or "BOLD Infrastructure for Alzheimer's Act," was approved in the Senate by a voice vote on December 12  and by the House on a vote of 361 to 3.  The law amends portions of the Public Health Code (at 42 U.S.C. Section 280c) to increase funding and restate priorities related to Alzheimer's and related dementias.  The funding authorized in the last provision of the law if for "$20,000,000 for each of fiscal years 2020 through 2024."  As one of my colleagues, administrative law guru Professor Matthew Lawrence reminds me, implementation of the new law will also likely require Congressional approval with an appropriations bill (or bills).  

The scope of this bill is, shall we say, broad.  It is not necessarily about funding research into causes or cures for dementias.  New language in the bill directs the Secretary of Health and Human Services to award grants, contracts or cooperative agreements with eligible entities (which includes "institutions of higher education") for the establishment or support of regional centers to "address" Alzheimer's and related dementias by:

    (A) advancing awareness of public health officials, health care professionals and the public on current information and research related to dementias,

    (B) identifying and translating promising research finding into evidence-based programmatic interventions for both those with dementia and their caregivers,

    (C) expanding activities related to Alzheimer's disease, related dementias and associated health disparities.

Other portions of the legislation seek to improve state and federal reporting and analysis of data on the incidence and prevalence of dementias; in addition, a section of the bill is directed to programming by state public health officials or agencies, with a 30% state matching fund requirement (unless the matching would cause "serious hardship").  

Senators Tim Kaine (D-VA) and Susan Collins (R-ME) were two of the primary sponsors of the legislation, which reportedly received support from "183 organizations and individuals, including the Alzheimer's Association, Alzheimer's Impact Movement and Maria Shriver, founder of The Women's Alzheimer's Movement."

 

For Nursing Homes Trapped in A Cycle of Failure -- What Solutions Are Available?

Recently I had a chat with a lawyer I've known for years who does a very good job representing large nursing home chains. We found ourselves shaking our heads about a series of news stories reported by central Pennsylvania's Patriot News focusing on care facilities formerly operating as part of the Golden Living chain. See the investigatory report, Still Failing the Frail.

Apparently, even after pressured transfers of the facilities to different companies, presumably companies with better management and better financial resources, many of them "continue to rack up citations with the state Health Department" for substandard practices.    I asked the lawyer whether he knew of any nursing home chain that has been able to pull out of death spiral?  He couldn't remember one.   

There is very little margin when low-income residents depend on Medicaid for payments.  Once a facility is affected by fines and pressures to increase staffing, the margin becomes even tighter.   Few states want to assume the roles of trustee or receivers for such properties.  The article concludes that one necessary step is to increase Medicaid funding.   

Although researchers recommend that nursing homes provide at least 4.1 hours of care per resident per day, it remains an open question whether all nursing homes can afford to do that. 

State and federal governments are the primary payers for the vast majority of nursing home residents. Residents receiving short-term rehabilitation are generally covered by Medicare, administered by the federal government. Long-term residents are generally covered by Medicaid, administered by state governments.

 

The problem is that state Medicaid programs, as in Pennsylvania, pay nursing homes far less than federal Medicare – sometimes as much as a third.

 

Although nursing home advocates and some researchers believe for-profit nursing homes routinely skimp on care in order to paid their profits, there are also genuine concerns about whether Pennsylvania’s Medicaid funding is adequate.

 

Researchers recommend how much of existing Medicaid and Medicare dollars are going to profit and administrative costs in homes. That would help determine whether Medicaid rates need to be raised and, if staffing standards are also raised, how much additional funding they need to provide those levels.

For some states, such as Pennsylvania, the Medicaid funding formula is part of the challenge.  As discussed in the series, other states have been able to create direct payment models to assure better accountability for patient care.