Saturday, May 25, 2019
The National Center for State Courts has announced the release of a new guardianship course, Finding the Right Fit: Decision-Making Supports and Guardianship.
According to the press release, this interactive on-line course covers
• How to support friends and loved ones in making their own choices about their health, finances, and lifestyle.
• Legal options, including powers of attorney and advance directives. • How to become a guardian.
• How a guardian can support a person’s decision-making.
• Identifying and understanding the risk of abuse, neglect, and exploitation that comes with any of the above options.
The course takes about 2 hours to complete and you have to create an account to access it. Check it out!
May 25, 2019 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)
Thursday, May 16, 2019
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.
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.
Wednesday, May 15, 2019
Professor Naomi Cahn sent us the link to this recent article, 7 maps that tell the incredible story of aging in America. "Census projections show a major demographic shift already underway and accelerating in the years to come. ...At the same time, populations are not aging evenly, and issues related to aging will impact individual communities in vastly different ways, boosting economic opportunity in some areas while putting a strain on social services in others."
One way to sort out who will be most impacted by aging is to look at age demographics across the country and how they will change over time. Using data from the U.S. Census Bureau and its own updated demographics, spatial-analytics firm Esri put together for Fast Company an exclusive map series that examines the issue from a number of angles, including a district-by-district breakdown of the median age in 2010 and the projected median age in 2023. The result is a compelling visual record of both who we are right now and where we are heading–a temporal snapshot for the ages, so to speak.
There are links to maps on the following topics:
Tuesday, May 14, 2019
That headline may have elicited a shoulder shrug from you and a fleeting thought as to why I thought this was newsworthy enough to be the subject of a blog post. So how about if I add some info for you? What if the story's title is this? Medi-Cal recipient, 101, evicted from Santa Rosa assisted living facility for being unable to pay. This is a situation where the elder outlived her savings. As the story explains
[The resident] like most people, probably never thought she’d live to be 101, and she clearly did not expect to be paying nearly $7,000 a month to be living in a senior residential care facility.
The expense drained her of all the money she had after selling her modest home in Santa Rosa’s Holland Heights neighborhood in 2013. By November of last year, all [the resident] could afford to give ... the assisted living facility, was her monthly Social Security check of about $1,300 — it wasn’t enough. ...
On April 18, [the resident], who suffers from dementia, was wheeled into Sonoma County eviction court on Cleveland Avenue. With her bank account drained, the former real estate agent was now receiving Medi-Cal, the state’s version of Medicaid health insurance, which the private-pay [ALF] le did not accept.
The story ultimately has an ending-a Medi-Cal bed was located for the resident. The story goes on to focus on the lack of beds in the area, the cost of long-term care, and the problem for folks like the elder in this story who outlives her savings.
Thanks to Julie Kitzmiller for alerting me to this story.
Thursday, May 9, 2019
City Lab wrote about an interesting concept whose time is past-due. Dementia-Friendly Cities Prepare for an Aging Populace explains "a movement [that] is growing across the country to create dementia-friendly communities. Business owners, police officers, bank tellers, college students, and others are training to learn to recognize signs of cognitive impairment, and how they can assist someone who is demonstrating impairment." Look at Middleton, Wisconsin, which was part of the leading edge of this trend, starting with "a resolution to become dementia-friendly, working with the Alzheimer’s and Dementia Alliance of Wisconsin. The city trained its employees and more than 50 businesses soon followed."
Here in the U.S., the efforts "to create dementia-friendly communities gained traction in 2015 with the launch of Dementia Friendly America at the White House Conference on Aging. Modeled after a successful program in Minnesota, the newly minted initiative announced pilot programs in six cities and communities, among them, Denver." This is no cookie cutter project, although there are some commonalities amongst the various projects.
The article notes that it's hard to measure success of the various projects, with various obstacles, including "reaching a critical mass of business owners, particularly in larger cities. Also, as many as 40 percent of people living with Alzheimer’s or dementia do not have an official diagnosis—making them, or their caregivers, unlikely to seek out the kind of services or respite care from which they could benefit."
Thanks to my colleague and dear friend, Professor Bauer, for sending me this article.
Tuesday, May 7, 2019
NPR's recent story, From Gloom To Gratitude: 8 Skills To Cultivate Joy reports on a new study of caregivers "all of whom had the stressful job of taking care of a loved one with dementia. The study found that following a five-week course, participants' depression scores decreased by 16 percent and their anxiety scores decreased by 14 percent. The findings were published in the current issue of Health Psychology." The lessons taught "include mindfulness and deep breathing, setting an attainable daily goal, keeping a gratitude journal and — yes, it works — performing small acts of kindness."
Here's a quick summary of the eight techniques used in Moskowitz' study:
Take a moment to identify one positive event each day.
Tell someone about the positive event or share it on social media. This can help you savor the moment a little longer.
Start a daily gratitude journal. Aim to find little things you're grateful for, such as a good cup of coffee, a pretty sunrise or nice weather.
Identify a personal strength and reflect on how you've used this strength today or in recent weeks.
Set a daily goal and track your progress. "This is based on research that shows when we feel progress towards a goal, we have more positive emotions," Moskowitz says. The goal should not be too lofty. You want to be able to perceive progress.
Try to practice "positive reappraisal": Identify an event or daily activity that is a hassle. Then, try to reframe the event in a more positive light. Example: If you're stuck in traffic, try to savor the quiet time. If you practice this enough, it can start to become a habit.
Do something nice for someone else each day. These daily acts of kindness can be as simple as giving someone a smile or giving up your seat on a crowded train. Research shows we feel better when we're kind to others.
Practice mindfulness by paying attention to the present moment. You can also try a 10-minute breathing exercise that uses a focus on breathing to help calm the mind.There is also an audio of the story, available here.Thanks to Professor Naomi Cahn for sending us the link to this story.
Monday, May 6, 2019
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.
Friday, May 3, 2019
Kaiser Health News ran a sobering story last week. In 10 Years, Half Of Middle-Income Elders Won’t Be Able To Afford Housing, Medical Care reports on a recently published study by Health Affairs that concluded "In 10 years, more than half of middle-income Americans age 75 or older will not be able to afford to pay for yearly assisted living rent or medical expenses, according to a study published ... in Health Affairs." Here is the abstract for the article, The Forgotten Middle: Many Middle-Income Seniors Will Have Insufficient Resources For Housing And Health Care.
As people age and require more assistance with daily living and health needs, a range of housing and care options is available. Over the past four decades the market for seniors housing and care—including assisted living and independent living communities—has greatly expanded to accommodate people with more complex needs. These settings provide housing in a community environment that often includes personal care assistance services. Unfortunately, these settings are often out of the financial reach of many of this country’s eight million middle-income seniors (those ages seventy-five and older). The private seniors housing industry has generally focused on higher-income people instead. We project that by 2029 there will be 14.4 million middle-income seniors, 60 percent of whom will have mobility limitations and 20 percent of whom will have high health care and functional needs. While many of these seniors will likely need the level of care provided in seniors housing, we project that 54 percent of seniors will not have sufficient financial resources to pay for it. This gap suggests a role for public policy and the private sector in meeting future long-term care and housing needs for middle-income seniors.
A pdf of the article is available here.
Thursday, May 2, 2019
If you answered yes to the title question, you are not along. Last month, Financial Advisor published an article, More Than Half Of Americans Want To Live To 100 reporting on a survey by AIG Life & Retirement. Why does someone want to live to be 100? Why not? There are various reasons, and the respondents offered these: "Thirty-nine percent of respondents cited deeper family relationships as the main reason for wanting to live 100 years. Another 32 percent said they wanted to see the world change, and 17 percent wanted to remain productive."
The respondents note that longevity can be accompanied by various issues. "Of the 53 percent whose goal is to be a centenarian, 51 percent are worried that their savings won't last for that long a life." As well, the likelihood of significant health issues took first place among concerns "(35 percent) ... followed by the likelihood of burdening their family (27 percent) and running out of the money needed to live comfortably in retirement (25 percent)." Planning for longevity is important. Although aging happens organically, planning for longevity is responsible aging.
Monday, April 29, 2019
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.
Sunday, April 28, 2019
PA Supreme Court's Choice of Law Ruling Obligates New Jersey Family Members to Provide Filial Support For Disabled Adult Son In Pennsylvania
In what appears likely to be the final chapter in a long-running "reverse" filial support case in Pennsylvania, a unanimous Pennsylvania Supreme Court ruled on April 26, 2019 that Pennsylvania statutory law applies to determine the liability of older New Jersey parents on the issue of whether they must pay for the long-term care costs for their son in a private institution in Pennsylvania. New Jersey law, unlike Pennsylvania law, expressly exempts any person "55 years of age or over" from a support obligation for an adult child.
I've been following the case of Melmark v. Schutt since at least 2016, and you can review some of the history of the case here, here and here. Until this ruling, the parents had successfully argued that New Jersey's law controlled the case. From the Supreme Court's opening footnote, however, where it outlined evidence of the parent's annual income, it was apparent the Court was outraged that parents who could be characterized as wealthy could refuse to pay a nonprofit care provider. The Court ruled that there was a "true conflict" between the laws of New Jersey and Pennsylvania, and recognized that while many factors such as the domicile of the parents and the stipulated 'residency" of the son pointed to the application of New Jersey law, the most significant contact factor was the "harm" of nonpayment, occuring in Pennsylvania. The Court concluded:
"[A]lthough New Jersey's welfare laws apparently provide for Alex's support at public expense, there is no reason to suppose that New Jersey has adopted a public policy favoring imposition of the ongoing cost of care for indigent adults on an unwilling private third party [i.e., Melmark].... [T]he exemption in New Jersey's statutory support law for parents over 55 years of age cannot justifiably override Pennsylvania's governing statute -- at least for the period between April 1, 2012 to May 1, 2013 -- so that the financial burden of Alex's care falls upon Melmark."
I have long thought the case has uniquely "tough facts," and Pennsylvania has a history of using Pennsylvania's law to obligate families to cover certain costs of care for indigent family members. Further, the Court also ruled that the institution had a viable related theory of recovery under Pennsylvania common law, sounding in quantum meruit or unjust enrichment.
The opinion has potential implications for cross border claims of filial support in the more typical Pennsylvania fact pattern, where adult children are asked to pay the costs of care for an aging parent who fails to qualify for Medicaid. E.g., Health Care & Retirement Corp. of America v. Pittas. I can see the potential for out-of-state children to be subject to a claim for reimbursement, especially if they have any role in choosing a Pennsylvania facility where Medicaid is unavailable to pay, facts that might also give the Pennsylvania court personal jurisdiction over the out-of-state children.
Thursday, April 25, 2019
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.
I wanted to write a post about some good news and I have two good news items, both courtesy of AARP. First, on April 23, 2019, Florida's Governor and AARP announced that Florida is the nation's fourth state to be part of AARP's age-friendly state network. I bet you are asking yourself, what does it mean to be an age-friendly state? According to the article, Governor Ron DeSantis and AARP Announce Florida’s Designation as an Age-Friendly State, it means "Florida [has a] commitment to building livable communities that enrich the lives of people of all ages. Member states develop and implement plans that address any or all of the eight Age-Friendly domains: Transportation, Housing, Public Spaces, Respect and Social Inclusion, Civic Participation and Employment, Social Participation, Community and Health Services, and Communication and Information." So that's exciting news.
And second, in a demonstration of age-friendliness, Florida AARP and the City of St. Petersburg, Florida dedicated the first of its kind in the country, #AARPFitPark which is, according to AARP's CEO, Joann Jenkins who was in town for the dedication, "a nationwide network of outdoor exercise spaces designed for users of all ages and abilities. They’re free and open to the public and there will be 53 across then nation."
Shout out to AARP Florida State Director Jeff Johnson who tweets as @Name_u_know for inviting me to the ribbon cutting of this very cool park.
Wednesday, April 24, 2019
Kaiser Health News published a story that was the work of Kaiser and PBS NewsHour jointly. Lethal Plans: When Seniors Turn To Suicide In Long-Term Care. Their "six-month investigation ... finds that older Americans are quietly killing themselves in nursing homes, assisted living centers and adult care homes."... "Poor documentation makes it difficult to tell exactly how often such deaths occur. But a KHN analysis of new data from the University of Michigan suggests that hundreds of suicides by older adults each year — nearly one per day — are related to long-term care. Thousands more people may be at risk in those settings, where up to a third of residents report suicidal thoughts, research shows."
The article acknowledges that "[t]racking suicides in long-term care is difficult. No federal regulations require reporting of such deaths and most states either don’t count — or won’t divulge — how many people end their own lives in those settings." The article includes comments from those in the industry that points out the amount of regulation of facilities by CMS and the facilities' supervision of their residents. The article provides some general examples as well as specifics. The article is hard to read when you get to those examples, but this is a very important topic. The article also discusses and distinguishes rational suicide. The article concludes with a discussion of interventions.
Tuesday, April 23, 2019
Frequent blog reader and friend, Professor Naomi Cahn has published another fabulous article! The Golden Years, Gray Divorce, Pink Caretaking, and Green Money has been published in 52 Family Law Quarterly 57 and is available on SSRN now.
Here's the abstract for this article
This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs to change as well. Nonetheless, notwithstanding changing family forms and roles and economic disparities, we have not made the requisite changes to prepare for the forthcoming silver tsunami.
Thanks Professor Cahn for letting us know about this latest article (And can you do the titles for all of my articles for now on?!)
Monday, April 22, 2019
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.
Monday, April 8, 2019
A few days ago the CDC issued a new report, Nonfatal Assaults and Homicides Among Adults Aged ≥60 Years — United States, 2002–2016.
Perhaps unsurprisingly, the CDC notes that the violence vs. older adults hasn't gotten the same attention and research as other cohorts. So, "[u]sing data ... [the] CDC analyzed rates of nonfatal assaults and homicides against older adults during 2002–2016. Across the 15-year period, the nonfatal assault rate increased 75.4% (from 77.7 to 136.3 per 100,000) among men, and from 2007 to 2016, increased 35.4% (from 43.8 to 59.3) among women. From 2010 to 2016, the homicide rate increased among men by 7.1%, and a 19.3% increase was observed from 2013 to 2016 among men aged 60–69 years." (citations omitted)
Look at that data again. "Nonfatal assaults [against older men] increased 75.4% (from 77.7 to 136.3 per 100,000) " with a 35.4% increase among women. "Growth in both the older adult population and the rates of violence against this group, especially among men, suggests an important need for violence prevention strategies " In my opinion, that is an understatement regarding the need for more research and prevention strategies.
The CDC discusses the limitations of their research and also offer that "[c]ollectively, these findings highlight the need to strengthen violence prevention among older adults. Unfortunately, few strategies have been rigorously evaluated." (citations omitted) In particular one idea caught my eye: "[i]ncorporating geriatric specialists in EDs might help link clinical care to service referrals."
This report is an important step, but we need more. The CDC report concludes "[v]iolence against older adults is an emerging and underreported public health problem. EDs might be promising settings to identify older adults at risk for violence and treat and support those already affected." (citations omitted).
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."
Tuesday, April 2, 2019
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.
Monday, April 1, 2019
Kristen Lewis has published a really great article in the March 2019 issue of Estate Planning Magazine. Planning Challenges for Beneficiaries With Special Needs. To accommodate adequately the particular circumstances of beneficiaries with special needs, multiple trusts may be required provides a comprehensive discussion of 10 challenges faced by estate planners when a beneficiary has special needs.
Consider the opening of this article
Disabilities do not discriminate based on a family’s socio-economic status. Families of great wealth have children or other beneficiaries with disabilities at the same rate as families of modest means. Estate planning attorneys, and the other allied professionals who serve these families, are no longer able to take the position that “We don’t do special needs planning,” or worse yet, recommend that the child or other beneficiary with a disability simply be disinherited (which is likely grounds for malpractice). A recent study by the Centers for Disease Control and Prevention concluded that the prevalence of Autism Spectrum Disorder (ASD) has risen to one in every 68 births in the U.S. A more recent study concluded that the estimated prevalence of children in the U.S. with a “parent-reported” diagnosis of ASD is now one in 40. The 2010 U.S. Census reported that almost 20% of the U.S. civilian non-institutionalized population claimed to have a disability. With statistics like these, estate planners and allied professionals must become, and remain, educated about the tools and techniques available to help clients secure the future of beneficiaries with disabilities within the broader context of estate planning. A critical first step is recognizing, and knowing how to overcome, the most common challenges to effective special needs planning. (citations omitted)
Read this article, then save it to your library as a resource. You will be glad you did!
PS-shameless plug: Mark your calendars for Stetson Law's 2019 Special Needs Planning Institute for October 16-18, 2019. Registration opens July 1. #StetsonSNT2019