Elder Law Prof Blog

One Downside to Caregiver Shortages

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

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

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

Are we moving towards any viable solutions any time soon?

When Was the Last Time You Had Your Eyes Checked?

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

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

What other risk factors should we conside?

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

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

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

Did You Catch the SSA and Medicare Trustees' Reports?

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

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

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

The full report is available here.

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

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

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

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

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

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

 

Roundup of Articles from May

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

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

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

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

4. CMS Unveils More User-Friendly Medicare Website

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

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

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

Long COVID Symptoms Not Always Caught With Elder Patients

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

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

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

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

Will Medicaid Tie Quality Care to the Funds?

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

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

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

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

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

Will Congress Pass Medicare Drug Negotiated Pricing?

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

Podcast on Quality SNF Care

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

 

Planning Housing for Old-Old Age

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

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

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

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

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

New Nursing Home Report from National Academies

The National Academies on Sciences, Engineering, and Medicine has released a new report, The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff (2022).

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

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

You can download a pdf of the report for free (need to create an account or download as a guest), read it online, or purchase a print copy

Billing Issues with Some Medicare Advantage Plans?

The Washington Post ran an article recently,  Beat cancer? Your Medicare Advantage plan might still be billing for it.

According to the article, the U.S. filed a false claims lawsuit in California against a health system, which is just one of others filed by the Government "on abusive billing practices in Medicare Advantage ...  [by] pursuing civil lawsuits against multiple companies that participate in the privatized system, from huge insurers to prestigious nonprofit hospital systems, alleging they have cheated the system for unfair profit."  The article notes that the industry's position is that the "firms adhere to Medicare’s rules and follow the system’s guidance on regulations that are not always clear. Moreover, the industry says that listing all health issues on medical records is a crucial part of Medicare Advantage’s promise to anticipate health problems, proactively manage disease and reduce hospitalizations."  Read the full article to learn more.

Advice for Caregivers

The New York Times recently published a guide for caregivers, How to Be a Caregiver.

The article contains 6 tips from caregivers: "1. Let the patient lead... 2. Focus on comfort...3. Listen to the experts. ..4. Talk to other caregivers...5. Take care of yourself...6. Shed the guilt."  Don't think you will find yourself caregiving? Consider this information from the article: "21.3 percent of U.S. adults are caregivers, according to Caregiving in the U.S. 2020, a report from the National Alliance for Caregiving and AARP. The report defines a caregiver as someone who has provided care to an adult or a child with special needs at some time in the past 12 months. The number of caregivers is growing, and now totals about 53 million adults, up 20 percent from 43.5 million caregivers in 2015."

The article provides these facts

• Most caregivers (about 90 percent) take care of a relative, usually a parent or spouse, while 10 percent care for a friend or neighbor.
• Women are more likely to be caregivers than men, and make up about 60 percent of unpaid caregivers.
• While most caregivers of adults take care of just one person, nearly one in four (24 percent) takes care of two or more people, up from 18 percent in 2015.
• More young people are taking on caregiving roles. About a third of caregivers are 39 or younger, and 6 percent of them are from Generation Z — age 23 or younger.
• Caregiving is time consuming. On average, today's caregivers provide about 24 hours of care each week. And most of them (61 percent) have another job.
• Caregiving takes a toll on health. More Americans (23 percent) say caregiving has made their own health worse, up from 17 percent in 2015.

The article includes suggestions on how to prepare, what you need to organize, and where to find help. Bookmark the article!

Two Hundred Years of Guns.... What if you knew the outcome when you were writing the Second Amendment?

Alexander Merezhko, a good friend since he was a visiting Fulbright Scholar at Dickinson Law from his home country of Ukraine, is now a member of Ukraine's parliament and a senior legal advisor to President Zelenskyy.  We email regularly about events in our respective countries; of course, there is a lot for us to discuss.  Recently, Alexander mentioned that discussions were underway about legalizing individual gun ownership in his country.  Suffice it to say, Professor Merezhko is worried about what happens after the war.  It seems likely the assault by Russian forces motivates those debates in Ukraine, but what about the future?  A similar struggle, America's own then-recent war for independence, was part of the context for the language of the Second Amendment to the U.S. Constitution, beginning with the words, "A well regulated Militia, being necessary to the security of a free State...."  

Could America's Founding Fathers have dreamed that the contextual phrase would be dismissed as significant and the remaining words of the Second Amendment would be treated as a mandate that permits unrestricted sales of weapons to individuals who are not part of any well-regulated system?  There is a very interesting article with historical  details I've never considered in The New Yorker, titled How Did Guns Get So Powerful?From the article by Phil Klay:

We wonder how we got here. How did guns grow so powerful—both technically and culturally? Like automobiles, firearms have grown increasingly advanced while becoming more than machines; they are both devices and symbols, possessing a cultural magnetism that makes them, for many people, the cornerstone of a way of life. They’re tools that kill efficiently while also promising power, respect, and equality—liberation from tyranny, from crime, from weakness. They’re a heritage from an imagined past, and a fantasy about protecting our future. It’s taken nearly two hundred years for guns to become the problem they are today. The story of how they acquired their power explains why, now, they are so hard to stop.

Why am I writing about guns (again) in the Elder Law Prof Blog?  The need for better support for mental health for youth and elders is part of what needs to be addressed.  Sadly, guns are part of a larger story not just for 18 year-olds in New York or Texas, but also for older Americans, as "firearm suicides are one of the leading causes of death for older Americans."  See Firearm Suicides in the Elderly: A Narrative Review and Call for Action, published in 2021 in the Journal of Community Health.  

Researcher Explains: Misuse of Data Can Lead to "Pariah-Tizing" the Elderly While Failing to Provide Key Information for All Ages

In September 2021, I listened to a great set of speakers at the Aging, Health, Equity and the Law Conference hosted by Touro College in New York.  One session in particular captured my attention.  Barbara Pfeffer Billauer, JD, MA (Occ. Health), PhD, who is currently Professor of Law and Bioethics at the University of Porto and Research Professor at the Institute of World Politics in Washington DC. spoke about the misuse of statistics regarding COVID-19 on an international scale.  We exchanged emails, and it was clear she was deep into the emerging data from countries around the world.

Dr. Billauer's most recent analysis has received its first publication on May 19, 2022 by the American Council on Science and Health at ACSH.org, with the appropriate yet provocative title of Pariah-Tizing the Elderly: Another Casualty of COVID.

Here she takes on recent news media coverage, including the Washington Post, as well as some scientific community publications, to raise the significant concern that exaggerating the risk of COVID-19 stigmatizes one group -- here the elderly -- while failing to fully inform all age groups about the efficacy of vaccination.  She opens with this explanation:

I call a mistaken, targeted focus and overemphasis on any population group “pariahtization.” As recent evidence demonstrates, this "pariah-tized” focus on the elderly regarding COVID-19 is certainly misplaced. It also has resulted in untoward policies that caused more deaths in both the younger segments of the population. . . .  

 

Contrary to popular opinion . . . COVID is not a disease of the elderly—like dementia, or cataracts, or osteoarthritis. Indeed, older people are less likely to die of COVID than heart disease or cancer. This is not so for the younger cohort, for whom during several months last year COVID was the leading cause of death.

 

For six months of 2021—half the year, COVID was the leading cause of death in those 45-54. In three months of the year, COVID was the leading cause of deaths forages 55-64, but only in two months was it the leading cause of death for those 65-74, the same as for those 35-44; and only in one month was COVID the leading cause of death for those over 75. . . .

 

The misplaced focus [of the media] on the aged being especially vulnerable has led younger people to unwisely eschew vaccination on the grounds that the disease is not generous to them.

Dr. Billhauer clearly has a way with words and she makes effective use of data and charts to explain important data concerns.  The implications of her findings go beyond the problem of the current crisis.  

HHS Inspector General Report on MA Plans

The Inspector General of HHS recently released this report,  Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns About Beneficiary Access to Medically Necessary Care.

Here's the OIG explanation why they did the study:

A central concern about the capitated payment model used in Medicare Advantage is the potential incentive for Medicare Advantage Organizations (MAOs) to deny beneficiary access to services and deny payments to providers in an attempt to increase profits. Although MAOs approve the vast majority of requests for services and payment, they issue millions of denials each year, and CMS annual audits of MAOs have highlighted widespread and persistent problems related to inappropriate denials of services and payment. As Medicare Advantage enrollment continues to grow, MAOs play an increasingly critical role in ensuring that Medicare beneficiaries have access to medically necessary covered services and that providers are reimbursed appropriately.

What the OIG found shows that "MAOs sometimes delayed or denied Medicare Advantage beneficiaries' access to services, even though the requests met Medicare coverage rules. MAOs also denied payments to providers for some services that met both Medicare coverage rules and MAO billing rules." They also found that 13% of denied prior authorizations met the coverage rules and that additionally some denials were made based on lack of documentation but OIG found sufficient documentation had been provided. 18% of payment request denials met the Medicare coverage rules.

Here are their recommendations

Our findings about the causes and circumstances under which MAOs denied prior authorization or payment for requests that met Medicare coverage and MAO billing rules provide an opportunity for improvement to ensure that Medicare Advantage beneficiaries have timely access to all necessary health care services, and that providers are paid appropriately. Therefore, we recommend that CMS:

• issue new guidance on the appropriate use of MAO clinical criteria in medical necessity reviews;

• update its audit protocols to address the issues identified in this report, such as MAO use of clinical criteria and/or examining particular service types; and

• direct MAOs to take additional steps to identify and address vulnerabilities that can lead to manual review errors and system errors.

The full report is available here.

Residents Are Asking a Lot of Questions -- Tough Questions -- about CCRCs

It is Sunday, and I'm looking at a long list of things to do next week, with grading exams at the top of my list.  Significantly, however, in the last six to eight months, at increasing rates, I'm hearing from current and prospective residents of Continuing Care Retirement Communities (CCRCs, also sometimes called Life Plan Communities).  Here are examples of some of the most often asked questions:

• "The company that runs my CCRC is about to engage in development of a new CCRC.  Is the money I've already paid in the form of an admission fee, or the money I continue to pay as monthly service fees, going to support this new development?"
• "During the lock-down associated with protecting residents and the public from COVID-19, we were asked to give up services that were the very reason we choose this community.  But now that we are no longer locked down, the services either are not returning or the fees we are charged are actually increasing.  Is there some effective way to object to this disconnect between the promises and the delivery of services?"
• "My parents are thinking about moving into a CCRC.  On the one hand, I like the idea of the active community they are choosing.  But on the other hand, the amount they are expected to pay in the form of an admission fee is astounding.  Why are some communities calling this a refundable fee and others are saying it isn't a refundable fee? What are the protections for the 'refundable' fee?"
• "We have just learned that our nonprofit CCRC is being transferred to a for-profit company as the owner-operator.  How is this likely to impact my wife and I as residents?"

Answers to many of these questions depend on the state's laws governing this form of senior living operation and, even more, on the particular contracts between the resident and the provider.  State regulators have concerns here too.  For those looking for legal assistance in their particular community, I sometimes recommend looking for attorneys in the caller's home state, someone who understands CCRCs from a resident perspective. I first wrote about the need for attorneys who understand resident perspectives in 2006.  

Sometimes "elder law" attorneys have this expertise, but not always.  Plus, it can be important to consult with an attorney who understands consumer protection laws, and not "just" CCRC law.  Finally, if litigation is actually on the horizon, the choice for legal advice can depend on whether the attorneys have expertise in litigation or dispute resolution and not "just" contract law. 

So, all of this is a short way of saying that even though, as an legal academic,  I often write about the importance of resident rights in CCRCs, and even though I believe the future of CCRCs is very much tied to the answers, I'm not in a position to respond to individual questions. The very fact that I'm writing this Blog Post is a potential indication that something important could be going on in the industry.  Perhaps that "something" should be addressed by the industry itself, especially if it wants the CCRC concept not just to survive, but thrive.  In my opinion, it is not enough for the industry to say that "every CCRC is different."  

RFP: Washington State Seeks Expert Consultation to Develop CCRC Regulations with Heightened Consumer Protections

I'm always interested when I start getting lots of calls or emails about a certain topic in aging.  Today I was hearing from a lot of people wanting to talk about Continuing Care Retirement Communities (CCRCs, sometimes also called Life Plan Communities or LPCs). It is safe to say that all forms of senior living operations are facing new challenges after being hit hard by the lockdowns and staffing problems of the last two years with COVID-19.

But one of the most interesting set of calls was from the State of Washington, where residents have been using their time together during COVID to think carefully about the need for certain key protections for consumers who put their money and trust into CCRCs.  The Washington Continuing Care Residents Association (WACCRA) has worked carefully, calmly and diligently to reach the ears of legislators and regulators in the state.  I had the pleasure of hearing from  members and residents of CCRCs in Washington last October and speaking at their annual meeting. 

Today, I heard that the  Office of Insurance Commissioner in Washington has initiated a Request for Proposals for a time-sensitive research project:

This project is designed to assess federal and state authorities regulating continuing care retirement communities (CCRCs) and provide a report with recommendations on creating a legal framework for shared regulatory oversight of CCRC products under Chapter 18.390 RCW, which may achieve heightened consumer protections.

Interested researchers -- with background in regulatory systems for CCRCS -- should act quickly as the deadline for submissions is May 23, 2022.   

Click HERE FOR THE FULL DETAILS!  

Caregiving's Impact on the Work Force

Last month, the Washington Post ran this article, Caring for aging parents, sick spouses is keeping millions out of work.

Even as the job market rapidly approaches the levels last seen before the coronavirus pandemic, a lack of affordable care for older and disabled adults is keeping many out of the workforce. At least 6.6 million people who weren’t working in early March said it was because they were caring for someone else, according the most recent Household Pulse Survey from the Census Bureau.Whether — and when — they return to work will play a role in the continued recovery and could reshape the post-covid labor force.

Read these next two paragraphs from the article very carefully:

For all the attention on parents — and mothers in particular — who stopped working to care for children during the pandemic, four times as many people are out of the work force, caring for spouses, siblings, aging parents and grandchildren, according to the Federal Reserve’s latest Monetary Policy Report.

...

Caregiving is the second-largest factor keeping people out of work, behind early retirements, at a time when job openings continue to outnumber potential workers. That mismatch is contributing to labor shortages around the country and playing a role in overall inflation. Roughly one-quarter of the workers missing from pre-pandemic levels are on the sidelines for caregiving reasons, according to the report. Overall, the economy is still short 1.6 million workers, two-thirds of them women, from early 2020.

Did you catch those numbers?  4x as many folks are not working because of caregiving responsibilities, and caregiving is the 2nd most common reason why folks aren't working.

Read the article. It's important!

ACL New Fact Sheet When Public Health Emergency Expires

The Administration for Community Living has released a new fact sheet on what will happen to elders and Medicaid when the public health emergency expires. This fact sheet includes 5 things 

1. Medicaid beneficiaries should make sure their Medicaid agency has their current contact information. They should check their mail and be sure to mail back any Medicaid forms they receive.
2. All renewal forms and notices must be accessible to people with limited English proficiency and people with disabilities.
3. Many people who are no longer eligible for Medicaid will have other coverage options.
4. If someone is disenrolled or their Medicaid coverage changes and they disagree with their state Medicaid agency’s decision, they can appeal.
5. The end of the Public Health Emergency may lead to an increase in utilization of services provided by Older Americans Act programs, Centers for Independent Living, Assistive Technology Act programs, and other ACL grantees.

The fact sheet contains useful explanations and is available for download.

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

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

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

 

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

 

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

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

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

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

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

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

The governor's veto statement explains:

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

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

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

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