Elder Law Prof Blog

Did You Miss These Two Items?

A dear friend of mine sent me this short video on how to make a SNF resident's room more easily identifiable to them: https://www.tiktok.com/@designsecretsss/video/7184175944666516779

Also, the latest edition of the Journal of Elder Policy has been published and is available here. The Journal is "an interdiscplinary journal about old age and policy", and prior issues can be accessed through the landing page.

Medicare and Social Security Projections-Not Unexpected?

The news from the Congressional Budget Office underscores the reality that the SSA and Medicare Trustees have been pointing out for a while now.  According to an article yesterday in The Hill, CBO warns of sharp uptick in Social Security, Medicare spending,

Federal spending on Social Security and Medicare is projected to rise dramatically over the next decade, far outpacing revenues and the economy on the whole while putting new pressure on Congress to address accelerated threats of insolvency, according to new estimates from the Congressional Budget Office (CBO). 

The increase is driven by a variety of factors, including Social Security’s new cost-of-living adjustment, the rising cost of medical services under Medicare and greater participation rates in both programs, as the last of the baby boomers become eligible for retirement benefits. 

Further, in Social Security set to run short of funds one year earlier than expected the director of the CBO explains

Social Security funds are set to start running a shortfall in 2032, one year earlier than previously expected, the director of the Congressional Budget Office (CBO) said on Tuesday.

“The Social Security solvency date — the exhaustion date for the trust fund — is now within the budget window,” CBO Director Phillip Swagel said, referring to the 10-year period covered by the agency’s annual report.

If the Social Security funds become insolvent and there is no change to current laws, beneficiaries would see a more than 20 percent reduction in their benefits, Swagel added. 

This is the CBO’s second update to the Social Security insolvency date in the last two months, after it adjusted its projection down to 2033 in mid-December.

And finally, in Axios today, Medicare politics are on a crash course with reality

By the numbers: Medicare spending is expected to more than double by 2033 — climbing to $1.6 trillion, or over 4% of the entire U.S. economy, according to an estimate released yesterday by the Congressional Budget Office.

[T]he program's trustees have said the fund that pays for Medicare's hospital coverage will soon reach a dangerous tipping point — paying out more than it takes in. On that trajectory, it eventually wouldn't be able to pay for the coverage it's supposed to provide.

Want to read the full CBO report? It's here.  

Misquoting Bette Davis, "Fasten your seatbelts. It's going to be a bumpy ride."

Limited Nursing Home Beds Also Impacting Hospital Availability

On December 7, NPR had a short segment during Morning Edition describing the impact of lack of staffing -- and therefore lack of "beds" --  in nursing homes and rehabilitation care facilities, which in turn means hospitals are stuck keeping the patients. Further, Medicaid often won't pay for hospital care for individuals who "only" need nursing home care. 

Listen to the 3-minute segment that uses hospitals in Vermont as the focus:  Limited Nursing Home Beds Force Hospitals to Keep Patients Longer.

The story hints at several subtle issues, including Medicaid funding priorities, especially as Medicaid involves joint federal/state funding, and how health care handles "inability to pay" by residents.   This last semester I've taught a stand alone course on Nonprofit Organizations Law and students are often surprised to learn that the single largest -- and highest income -- segment of the nonprofit world is health care, especially hospital-based health care.   Students ask how a "charity" accounts for earnings and losses -- and we discuss the fact that no organization, nonprofit or for profit, can afford to operate very long without adequate revenues to stay solvent.    The NPR story reflects a theme that my course often raises -- what does it mean to be "charitable"?  

USA's Fastest-Growing Demographic Group? Consider the Implications of People Age 50+ Who Live Alone

The New York Times Sunday edition includes a feature article about a trend, "more older Americans living by themselves than ever before."  

Using graphs, interviews and research results, the article makes a clear argument, that "'while many people in their 50s and 60s thrive living solo, research is unequivocal that people aging alone experience worse physical and mental health outcomes and shorter life spans." 

Plus, the article implies that evidence that shows a growing share of older adults (age 55 plus) do not have children, means there is a public policy concern "about how elder care will be managed in the coming decades." 

For me, this article crystalizes two legal concepts I write about frequently:  "filial support" laws that can be used to compel adult children to care for or maintain their elders, and "continuing care retirement communities," that permit people with sufficient -- make that significantly sufficient -- financial resources to plan for how their care needs may be handled in a planned community.  

Law professors can probably use the article to stimulate waves of student projects about personal and collective responsibilities in American societies and beyond.  

For more, see  "As Gen X and Boomers Age, They Confront Living Alone," by Dana Goldstein and Robert Gebeloff. 

 

Justice Department Expands Strike Force to Protect Older Americans from Fraud

The U.S. Justice Department issued a press release yesterday, announcing the expansion of its Transnational Elder Fraud Strike Force.  The Strike Force was organized in 2019, involving the Justice Department's Consumer Protection Bureau,  U.S. Attorneys Offices, the FBI, Homeland Security, and -- I was interested to see -- the United States Postal Inspection Service

I've actually worked with the Postal Inspector on an elder fraud case.   A woman in her 90s was mailing an unusually fat envelope and asked a friend to give her a ride to a local branch of the post office.  The friend, knowing the woman was quite frail when walking unassisted, offered to get the postage, or to accompany her, but the older woman, who the friend thought seemed unsure of herself, declined.  The friend thought about this, was alerted by what struck her as unusual behavior, and called the woman's daughter and explained what had just  happened. 

The daughter had dismissed a home caregiver recently after learning the caregiver was asking her mother for -- and receiving --  two  or more "pay checks" per week, as well as asking for additional cash that seemed to disappear in mysterious ways.  The daughter went to the post office with a copy of a certified Power of Attorney, granted to her by her mother several years before she was diagnosed with multiple conditions, including cognitive issues, following a stroke.  In fact the reason the caregiver had been hired was precisely because the mother was vulnerable and sometimes confused. 

The Post Office at first seemed to be reluctant to take action, but the daughter was able to describe the envelope and also to provide the name of the former employee who had already been fully paid for his work, and had signed a receipt to that effect. The Post Office's worker agreed to search, but when the daughter departed, it seemed unlikely any action would be taken.  That is, it seemed unlikely until the next day, when a representative of the Postal Inspector set up an appointment.  Having identified and been given the daughter/agent's permission to open the envelope, the federal authorities found several hundred dollars in the envelope that was, indeed, addressed to the former worker.  The officers interviewed the mother and then went to see the suspect, who claimed it was merely an additional paycheck that was "owed."  He  claimed the mother was fully supportive of giving him cash, but he was unable to explain the receipt he'd signed, the burner phones he had used to call the woman, nor the many "payments" he'd received in the last 60 days, payments that the daughter had since documented as more than tripling his agreed wage rate during that period. 

I'm the daughter; my 90+ mother was the person defrauded.  (She has since passed away, so I feel more able to tell this story.)  I learned the Postal Service already understood such a fact pattern very well.  Even at that time, several years ago, the official investigating the facts told us that similar transactions happened all too often.  It is good to see, with this latest press release, that the U.S. Justice Department is coordinating authorities on enhanced fraud prevention and recovery efforts in support of elder justice.  

My thanks to Associate Dean for Academic Affairs Amy Gaudion at Penn State Dickinson Law, who shared the Justice Department notice with me, and whose own research focuses on national security and privacy issues.  

MA Plans May Not Cover All Medicare-Allowed Days for SNF Stay?

Kaiser Health News just released this story, Nursing Home Surprise: Advantage Plans May Shorten Stays to Less Time Than Medicare Covers.

Health care providers, nursing home representatives, and advocates for residents say Medicare Advantage plans are increasingly ending members’ coverage for nursing home and rehabilitation services before patients are healthy enough to go home.

Half of the nearly 65 million people with Medicare are enrolled in the private health plans called Medicare Advantage, an alternative to the traditional government program. The plans must cover — at a minimum — the same benefits as traditional Medicare, including up to 100 days of skilled nursing home care every year.

But the private plans have leeway when deciding how much nursing home care a patient needs.

One expert interviewed for the story  noted that "[a]s Medicare Advantage enrollment has spiked in recent years, ... disagreements between insurers and nursing home medical teams have increased. In addition, [the expert] said, insurers have hired companies, such as Tennessee-based naviHealth, that use data about other patients to help predict how much care an individual needs in a skilled nursing facility based on her health condition. Those calculations can conflict with what medical teams recommend...."

This is an important issue. Read this story.

Another Article on the Impact of Family Caregiving

On several occassions we've pointed out issues surrounding the need for caregiving and families stepping up to fill the role.  Add this article from the New York Times to the library of articles on the topic. The Quiet Cost of Family Caregiving focuses on the impact on the individuals providing care, especially if they are working. For example, "Caregivers who are employed often reduce their work hours or leave the workplace altogether, research has shown. Several recent studies, however, reveal the impact of these decisions in more detail, not only on working caregivers but on employers and the general economy." The article looks at the data on those who reduce hours or leave the workforce and the gender differences on those leaving the work force.  This is an important article-read it!

Some Critical Access Hospitals Overpaid by Medicare?

And another report from the HHS Office of Inspector General,  Medicare Part B Overpaid and Beneficiaries Incurred Cost-Share Overcharges of Over $1 Million for the Same Professional Services.  Here is their findings:

Not all Medicare Part B payments made to CAHs for professional services and payments made to health care practitioners complied with Federal requirements. For the 40,026 claims we audited, CAHs and health care practitioners each submitted an equal number of claims. However, for each date of service, only one of the claims complied with Federal requirements. As a result, Medicare administrative contractors (MACs) paid providers $907,438 more than they should have been paid, and beneficiaries were held responsible for $281,321 more than they should have been.

These overpayments occurred because CMS did not have claim system edits to prevent and detect duplicate professional services claims for the same date of service, beneficiary, and procedure.

The full report with comments and recommendations is available here.

Certain SNF non-compliance on infection control and more?

The Office of the Inspector General for HHS has released a report,  Certain Life Care Nursing Homes May Not Have Complied With Federal Requirements for Infection Prevention and Control and Emergency Preparedness.

Here is a summary of their findings

Selected Life Care nursing homes may not have complied with Federal requirements for infection prevention and control and emergency preparedness. Specifically, 23 of the 24 nursing homes selected had possible deficiencies. Actual deficiencies can only be determined following a thorough investigation by trained surveyors. At 22 nursing homes, we found 35 instances of possible noncompliance with infection prevention and control requirements related to annual reviews of the Infection Prevention and Control Program, training, designation of a qualified infection preventionist, and Quality Assessment and Assurance Committee meetings. We also found at 16 nursing homes 20 instances of possible noncompliance with emergency preparedness requirements related to the annual review of emergency preparedness plans and annual emergency preparedness risk assessments. Life Care officials attributed the possible noncompliance to: (1) leadership turnover, (2) staff turnover, (3) documentation issues (i.e., information was not documented or documentation was either lost or misplaced), (4) staff members who were unfamiliar with requirements (i.e., requirements stipulating that there is no grace period for infection preventionists to complete specialized training and that emergency preparedness plans needed to be reviewed annually), (5) qualified personnel shortage, and (6) challenges related to the COVID-19 public health emergency. We also believe that many of the conditions noted in our report occurred because CMS did not provide nursing homes with communication and training related to complying with the new, phase 3 infection control requirements, or clarification about the essential components to be integrated in the nursing homes’ emergency plans. 

The full report with recommendations is available here.

Canada Medically-Assisted Death

The New York Times recently ran this article, Is Choosing Death Too Easy in Canada? "Last year, Canada changed its assisted death law, permitting people with chronic, “grievous and irremediable” conditions and physical disabilities to commit suicide, even if they are not terminally ill."  As far as how Canada compares to other countries, "Canada is among 12 countries and several American states where assisted death is permitted in certain circumstances. Since last year, it has been one of at least three — including Belgium and the Netherlands — that allow an assisted death if the person is suffering from a chronic painful condition, even if that condition is not terminal."  Part of what is causing debate, according to the article, is a change that takes effect in March of 2023, when "the law will expand again, to apply to people with some mental disorders. A Parliamentary committee of lawmakers is studying what standards should govern those cases; its report is expected in the fall."  The article discusses views of opponents and proponents and includes some stories of Canadians. Read the article. It will be great for a basis for class discussion!

 

 

Economic Insecurity for Older Adults

Kaiser Health News ran a sobering article, ‘It’s Becoming Too Expensive to Live’: Anxious Older Adults Try to Cope With Limited Budgets.

Economic insecurity is upending the lives of millions of older adults as soaring housing costs and inflation diminish the value of fixed incomes.

Across the country, seniors who until recently successfully managed limited budgets are growing more anxious and distressed. Some lost work during the covid-19 pandemic. Others are encountering unaffordable rent increases and the prospect of losing their homes. Still others are suffering significant sticker shock at grocery stores.

The article goes on to focus on the circumstances of 3 individuals and the inpact of unexpected circumstances can have on the financial security of someone who worked hard all their lives.

Along the same lines, don't miss this article from the New York Times, Downsizing in Retirement: Expenses They Didn’t Expect. 

Focusing on unexpected expenses that arise from downsizing, such as making improvements in order to sell the house and closing costs related to the sale, the article also discusses the impact of the housing market and interest rates on the ability to sell the house, the costs incurred in finding a new home, and of course, who can forget, taxes associated with the sale of the home.

The Myriad Benefits Available to Older Persons

Kaiser Health News published a recent article that focused on the various programs and benefits for older persons that they may not know about.  While Inflation Takes a Toll on Seniors, Billions of Dollars in Benefits Go Unused offers these examples to make the point:

A few examples: Nearly 14 million adults age 60 or older qualify for aid from the federal Supplemental Nutrition Assistance Program (also known as food stamps) but haven’t signed up, according to recent estimates. Also, more than 3 million adults 65 or older are eligible but not enrolled in Medicare Savings Programs, which pay for Medicare premiums and cost sharing. And 30% to 45% of seniors may be missing out on help from the Medicare Part D Low-Income Subsidy program, which covers plan premiums and cost sharing and lowers the cost of prescription drugs.

And yes, the article acknowledges that for many programs, eligibility is based on a means test, while for others, it's just a priority.  The article offers tips to find out if an older person is eligible for any of these programs, starting with the local Area Agency on Aging.

Saving an Arm & a Leg on Drug Costs

Kaiser Health News released a podcast yesterday about the new law for CMS to negotiate drug prices under Medicare. ‘An Arm and a Leg’: The New Cap on Medicare Drug Costs explains "[t]he U.S. Senate was voting on the Inflation Reduction Act, which among other things is designed to ensure that people on Medicare pay less for expensive drugs....It’s a big deal. Lots of seniors pay $10,000 a year or more for drugs or do without lifesaving treatment; once the new law kicks in, it sets an out-of-pocket limit of $2,000 a year. "

The link to the 26 minute podcast is available here.  A transcript of the podcast is available here.

A Model for Other States? Pennsylvania's Law Schools form Consortium in Active Support of Elder Justice

Faculty members representing all nine law schools in Pennsylvania have joined together in a unique effort.  The inspiration was communications initiated by jurists in the Pennsylvania Courts, especially Supreme Court Justice Debra Todd, promoting the need for sound legal advice and representation for older persons. The purpose of Pennsylvania academics' new Elder Justice Consortium is to identify, examine, and seek to alleviate challenges and difficulties facing diverse older populations across the Commonwealth. 

This mission will include support for direct legal services for older adults, sometimes through law school clinics or service projects, as well as "pop-up" outreach and educational modules that focus on older adults in underserved communities and regions.  

Duquesne University School of Law Assistant Professor Katherine L.W. Norton, who also serves as the director of clinical legal education programs at her school, is serving as the inaugural chair of the Consortium.  During the summer of 2022,  more than fourteen faculty members met regularly to identify ways that law schools can effectively increase our support and commitment to "elder justice."  Professor Norton reports the group invited guest speakers from IOLTA (Interest on Lawyer's Trust Accounts) and the SeniorLAW Center in Philadelphia to share their ideas on funding and needs, as well as seeking a legislative update on guardianship law reforms from Patrick Cawley, an Elder Law attorney from central Pennsylvania who earlier served as counsel for an influential committee in the Pennsylvania Senate.  Members of the consortium also exploring joining an amicus team in a case to be argued before the United States Supreme Court in November. The case addresses whether residents of nursing homes have the right to enforce key provisions of the federal Nursing Home Reform Amendments (OBRA 1987) via direct suit under Title 42, United States Code, Section 1983.  

The Consortium's next step will be for the Deans of the nine law schools to meet in September 2022 in Philadelphia with representatives of the Pennsylvania Supreme Court and other interested parties to discuss programming options and priorities for action with the support of our law schools.  Stay tuned, and let us know whether Law Schools in your state have similar teams on behalf of older people.

A Few Interesting Articles

I'm a bit behind and in an effort to catch up, in this post I just wanted to point out to you a few interesting articles that you hmay want to read.

1.  A robot that will catch an older person who is falling:  This robot catches grandma before she falls.

2. Probiotics and arthritis: Rheumatoid arthritis could be treated by eating probiotic bacteria.

3. Advance detection of Alzheimer's before symptoms manifest:  New Device Can Detect Alzheimer’s 17 Years in Advance

(Thanks to my dear friend Professor Feeley for sending me the links to the last two).

Consumer Financial Protection Bureau and CMS Jointly Caution Nursing Homes and Their Debt Collectors on Their Practices

Today, my Conflict of Laws class and I watched a live-streamed hearing involving "choice of law": "state" (about contracts) versus "federal law" (prohibiting practices affecting contracts)  The context is a bit dramatic and definitely overdue for action.

On the same day as the public hearing, which was hosted by the Consumer Financial Protection Bureau (CFPB) for panelists to identify concerns about certain debt collection practices used by nursing homes against the family members and others, CFPB and the federal Centers for Medicare and Medicaid Services (CMS) issued a "notification letter."  The letter, dated September 8, 2022 and addressed to "Nursing Facilities and Debt Collectors," details improper practices under federal law, such as asking "third parties" to sign documents that, in effect, serve as  personal guarantees of payment of nursing homes.  Without those guarantees, the nursing home may deny admission or continued care.  However, the third parties are often family members or even mere "friends," who may be trying to help get care, but who have little knowledge of the resident's personal finances or eligibility for Medicare or Medicaid, and who may not understand the risks of "agreeing" to sign the contracts.  

I began writing about this problem years ago in a series of articles.  In "The Responsible Thing to Do About Responsible Party Provisions in Nursing Home Agreements," I focused on misleading attempts to have someone agree to be a "responsible party" for purposes of the resident being admitted, without the signer's full understanding that the signature may be construed by state courts as a promise to pay if the resident cannot pay personally or does not qualify for Medicare or Medicaid payments.  See also "Traps for the Unwary in Nursing Home Agreements."

Recent studies conducted under the auspices of Kaiser Family Foundation (at KHN) provide additional examples of the hardships on families and friends. Unfortunately, the problems with attempts to hold third-parties liable for costs of nursing home care have become more intense with Covid-19 crises affecting long-term care.  Indeed, one of the pandemic-influenced contracting practices that adds to the problem is use of "on-line signing processes" for these contracts.  As family members were often not even present during the admission's process, nursing homes are increasingly turning to e-signatures. The swift moving electronic process for initials and virtual signatures all too easily flies by without any true reading, much less understanding, of the documents and with close to zero likelihood the signers will be able to ask questions (such as "Do I have to sign this?" or "What happens if I don't sign this?") and gain accurate answers.  Nursing homes deserve to be paid for their care -- but the right way to do this is to involve people who can help the families apply for benefits under Medicare or Medicaid, and who won't insist on private pay if the resident's resources are too low to support such pay.   

In my experience, thoughtfully-managed, well-run nursing homes definitely exist.  They get sound business and legal advice and know that is more cost effective to help families through the process than sue them when the documents are not understood.  Experienced elder law attorneys, including specialists in Legal Services offices, can help too.  But while reading the KHN report linked above, too often I was seeing "default judgments" involved here -- and in those instances, that usually means a lack of informed agreement on the part of signers or that the admission processes are otherwise not working properly.   

Is Florida Still An Affordable Retirement Option?

That's the question that was asked in a recent article in the Tampa Bay Times. Is Florida still an affordable place to retire? Amid rising costs, some seniors are reconsidering. Let me set the stage with this excerpt:

Cheaper than Miami or Naples, with destination beaches and a city once nicknamed “God’s Waiting Room,” Tampa Bay has long been hailed as an affordable place to retire in The Sunshine State.

But it’s becoming untenable for many seniors to survive in the area.

While costs are climbing everywhere, Tampa Bay’s prices have outpaced the national average. Area prices rose by roughly 11% in the last year, according  to the U.S. Bureau of Labor Statistics, compared to just 9% nationally.

Retirees, who depend largely on fixed incomes, are feeling it.

Read the article and draw your own conclusions. I have.

Planning for Your Special Needs Child and Retirement

The New York Times ran this article last week. Planning for Your Retirement, and for a Child’s Special Needs, All at Onceexplains "[f]or parents of children who have serious disabilities or special needs, the challenges of growing and preserving their wealth are magnified exponentially, and the stakes are much higher. While they are trying to plan for their own retirements, these parents need to simultaneously secure the ‌ stability of a son or daughter who will be dependent on them‌ until — and even  after — their deaths." The article does a good job of framing and discussing the issues and options and provides good examples.

CFPB Hearing On Nursing Home Debt Collection Practices

Consumer Financial Protection Bureau has announced a Save the Date: CFPB Field Hearing with Director Chopra on Nursing Home Debt Collection Practices

On September 8, 2022, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra will host a virtual discussion with advocates, service providers, community leaders, and members of the public to explore challenges around nursing home debt collection practices and the impact they can have on the financial wellbeing of caregivers, their families, and friends. We are looking forward to your participation, so please be sure to save the date.

To register, click here

When Private Equity Owns Nursing Homes

Last week the New Yorker newsletter ran this article, When Private Equity Takes Over a Nursing Home. Focusing on the sale of one nursing home, the article discusses the facility before the sale and after.

Nearly a quarter of the hundred-person staff had been with the home for more than fifteen years; the activities director was in her forty-fifth year. But the ownership change precipitated a mass exodus. Within two weeks, management laid out plans to significantly cut back nurse staffing. Some mornings, there were only two nursing aides working at the seventy-two-bed facility. A nurse at the home, who spoke on condition of anonymity for fear of retribution, told me, “It takes two people just to take some residents to the bathroom.” ,

Consider the prevalence of private equity's ownership of nursing homes. According to the article, "Since the turn of the century, private-equity investment in nursing homes has grown from five billion to a hundred billion dollars. The purpose of such investments—their so-called value proposition—is to increase efficiency. Management and administrative services can be centralized, and excess costs and staffing trimmed."  Further, "Private-equity firms currently own only eleven per cent of facilities, as a federal report found. But about seventy per cent of the industry is now run for profit."

This is an important article.