Elder Law Prof Blog

Bill Introduced to Repeal Medicaid Estate Recovery

A bill, Stop Unfair Medicaid Recoveries Act, has been introduced in Congress to repeal Medicaid Estate Recovery and to limit liens.  The bill, HR 6698 addresses the elimination of estate recovery this way:

“(6) Notwithstanding any preceding provision of this subsection, no adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be initiated, maintained, or collected on or after the date of the enactment of this paragraph. Not later than 90 days after such date, a State shall withdraw any lien in effect as of such date with respect to such medical assistance correctly paid.”

The full text is available here.  Information about the bill, including the sponsor and co-sponsors, is available here. Thanks to attorney Jim Schuster for alerting us to this legislation.

The Fading Possibility of Aging At Home

We have blogged several times in the past about the desire of folks to age in place, and separately, the declining availability of home care workers.  Those two issues have now merged in a recent guest essay in the New York Times,  Many of Us Want to Age at Home. But That Option Is Fading Fast. "By 2040, the population of American adults aged 65 and older will nearly double, and that of adults aged 85 and older is expected to quadruple over the same period. As our aging population grows, the need for home care is increasing. Yet in New York, as in much of the rest of the country, there are too few workers."  The article looks at various reasons for the lack of home care workers, various reports on the issue, and proposed legislative solutions.  The essay concludes with this reminder: "[w]hether we are growing older, recovering from surgery or living with a disability and need help with things like making meals, transportation to and from appointments and running errands, most Americans will need home care at some point. Let’s make sure when the time comes, the work force is ready."

Thanks to my friend and colleague, Professor Mark Bauer, for sending me the link to this essay.

Increase in Multi-Generational Housing

Pew Research Center recently released a report on multi-generational housing. In Financial Issues Top the List of Reasons U.S. Adults Live in Multigenerational Homes   consider this key finding:

A third of U.S. adults in multigenerational households say caregiving is a major reason for their living arrangement, including 25% who cite adult caregiving and 12% who cite child care. Among the other reasons given for living in a multigenerational household, 28% say it’s the arrangement they’ve always had, while smaller shares cite a change in relationship status (15%), or companionship (12%) as a major reason why they live with family members. About one-in-eight adults (13%) say the coronavirus pandemic is a factor in why they live with multiple generations under one roof.

Breaking it down by age, the report notes that

[A]mong the oldest Americans – ages 65 and up – 20% of women live in multigenerational households, compared with 15% of men. Older Americans are less likely to live alone than they were several decades ago, a change linked to the growing share of older women who live with their spouse or children. 

By broad age group, Americans ages 25 to 39 and those ages 55 to 64 are about equally likely to live in multigenerational family households (each 22%). But within the younger group, those ages 25 to 29 (31%) are far more likely to live with multiple generations under one roof than those ages 30 to 34 (19%) or 35 to 39 (15%). 

The full report is available here.

Challenge to Residency Requirement in Oregon Medical Aid-in-Dying Statute

The Associated Press reported that Oregon ends residency rule for medically assisted suicide.  A lawsuit challenging the residency requirement had been filed and as a result of a settlement, "Oregon will no longer require people to be residents of the state to use its law allowing terminally ill people to receive lethal medication, after a lawsuit challenged the requirement as unconstitutional. ...  [T]he Oregon Health Authority and the Oregon Medical Board agreed to stop enforcing the residency requirement and to ask the Legislature to remove it from the law."  The suit addresses an issue faced by doctors who "had been unable to write terminal prescriptions for patients who live just across the Columbia River in Washington state. [Even though] Washington has such a law, providers can be difficult to find in the southwestern part of the state, where many hospital beds are in religiously affiliated health care facilities that prohibit it."  The article indicates that advocates intend to challenge the residency requirement in other states with aid-in-dying laws.    Stay tuned.

DOJ Found Colorado Violated the ADA

On March 3, 2022, DOJ announced "that Colorado unnecessarily segregates people with physical disabilities in nursing facilities, in violation of the Americans with Disabilities Act (ADA) and the Supreme Court’s decision in Olmstead v. L.C. The department’s findings, detailed in a letter to Colorado Governor Jared Polis, follow a thorough and multi-year investigation into the state’s system of care for people with physical disabilities." 

"We have concluded that the State is failing to serve individuals with physical disabilities in the most integrated setting appropriate to their needs. Unnecessary institutionalization is common in Colorado despite several programs to help adults with physical disabilities remain in, or transition back to, their own homes and communities." The press release containing the announcement is available here. The letter to the Colorado Governor is available here. 

No More Emergency, No More Medicaid?

Elder Law Attorney and frequent blog reader Morris Klein (thank you Morris) sent me the link to a recent article in the Washington Post, Millions of vulnerable Americans likely to fall off Medicaid once the federal public health emergency ends.

As many as 16 million low-income Americans, including millions of children, are destined to fall off Medicaid when the nation’s public health emergency ends, as states face a herculean mission to sort out who no longer belongs on rolls that have swollen to record levels during the pandemic.

The looming disruptionis a little-noticed side effect of the coronavirus crisis, and it is stoking fears among some on Medicaid and their advocates that vulnerable people who survived the pandemic will risk suddenly living without health coverage. For the Biden administration — which will make the decision on when to lift the health emergency — there is the potential political stain of presiding over a surge of poor, newly uninsured Americans, depending on how things go once states resume checking which Medicaid beneficiaries still qualify.

The full article is available here.

Reconsidering the Implications of Togetherness As Couples Get Older

I have a fondness for California Rock & Roll from a certain era -- also known as my youth.  One of my favorites, Warren Zevon, is probably mostly remembered as a singer/songwriter, and he penned some great songs such as Hasten Down the Wind (performed by another favorite, Linda Ronstadt, who, like me was born next door to California in Arizona).  Some of his lyrics work equally well as poetry.  Right now I'm thinking to the opening lines to Reconsider Me, recorded and released by Zevon in 1987:   

If you're all alone

And you need someone

Call me up

And I'll come running

Reconsider me

Reconsider me

Those lines seem to echo in an article from the New York Times today, describing a trend among older singles -- they are willing to love again, but at least one half of the couple isn't willing to live together.  The article begins by describing a 78 year-old widow's friendship with a a widowed man that was turning romantic.   He wanted them to move into together.  She wasn't eager and she admits that his health woes were part of the concern.  She is quoted as saying "He was not in great shape."  Eventually, when he had surgery and needed recuperative care, she followed his directions and "using his funds, hired a live-in caregiver for him."  Once he recovered, they spent more time together.  

The NYT writer, Francine Russo, observes:

With greater longevity, the doubling of the divorce rate since the 1990s for people over 50 and evolving social norms, older people like Ms. Randall are increasingly re-partnering in various forms.  Cohabitation, for example, is more often replacing remarriage following divorce or widowhood, said Susan L. Brown, a sociologist at Bowling Green State University in Ohio.

 

These older adults are seeking (and finding) love, emotional support and an antidote to loneliness.  But many older women, in particular, fear that a romantic attachment in later life will shortly lead to full-time caregiving.

The New York Times article also echoes topics addressed in the article I linked to last week by Cahn, Huntingdon and Scott, Family Law for the One-Hundred Year Life.  For more from the Times, if you have a subscription, see Older Singles Have Found a New Wat to Partner Up:  Living Apart.  

 

 

Adapting Family Law to Recognize Importance Of Older Members and Significance of Aging

Naomi Cahn of University of Virginia School of Law Law joins Clare Huntington, of Fordham Law  and Elizabeth Scott, Emerita Professor at Columbia Law, to propose needed changes in family law to reflect the impact of aging.  In their forthcoming article for Yale Law Journal (Vol. 132) titled Family Law for the One-Hundred Year Life, they contend family law must address the interests and needs of families across the life span, and not just those of younger people.  They point to three areas for focus: the dignity and autonomy interests of older persons, structural inequalities, and the need for legal mechanisms that are efficient and accessible.  An example of their calls for legal reform is the discussion of intrafamily personal care contracts:

The response of regulators and courts to intrafamily personal care contracts illustrates well the law’s failure to support family care, especially for low-income families. In arranging in-home care, older adults sometimes contract with service providers, but they also contract with family members. A care contract is especially helpful when an older adult wants to receive these services from a family member but the family member cannot provide care without compensation. But these agreements run into problems. If the older adult is trying to qualify for Medicaid, many states scrutinize the contracts to ensure they are not simply a means for transferring assets from the older adult to the younger relative, helping the older adult satisfy Medicaid’s means-tested eligibility requirements. Partly based on the assumption that familial care is provided altruistically, state regulators regularly find that the agreements are, indeed, fraudulent transfers. This is an example of class-based discrimination: intrafamilial contracts for care are not scrutinized by public authorities unless the care recipient seeks to qualify for public support through Medicaid.

Equally interesting is their discussion of "opt-in or opt-out" concepts for the definition of family.  All-in-all, this article looks to the future of judicial, regulatory and legislative legal systems, while also offering ways to challenge our students in the classroom now.  

 

Steps to Take When Moving Into Retirement

I found helpful this recent New York Times article, When You’re Tiptoeing Into Retirement, Take These Key Steps. I thought the setup to the article was spot-on "For many, getting to retirement age is not a simple matter of giving two weeks’ notice. You may want to extend a career or wind down work life or a business. If you’re able, you may want to keep working until you are 70 (and beyond), when you will receive the largest possible Social Security payment. These in-betweeners are slow-walk planning to arrive at the moment when they are not working anymore. What’s involved is a delicate jigsaw puzzle of decisions, nest egg bolstering and financial calculations. This transitory time also presents a meaningful time for reflection and short-term planning."  The article discusses "issues to consider' including the timing of taking Social Security Retirement (and some links to companies you can hire to help you with the decision), phased retirement, financing retirement, including tax planning, and whether to create a plan yourself, or with a professional. "More important, one of your key questions should be, “What do I truly want to do and how do I get there?” Whether you are envisioning partial or full retirement, it helps to have some specific goals."

Another Impact of COVID: Apathy?

Kaiser Health News examined how COVID's continued presence is wearing folks down in As Covid Slogs On, Seniors Find Fortitude Waning and Malaise Growing.

Despite recent signals that covid’s grip on the country may be easing, many older adults are struggling with persistent malaise, heightened by the spread of the highly contagious omicron variant. Even those who adapted well initially are saying their fortitude is waning or wearing thin.

Like younger people, they’re beset by uncertainty about what the future may bring. But added to that is an especially painful feeling that opportunities that will never come again are being squandered, time is running out, and death is drawing ever nearer.

As the article notes, some older adults who are vaccinated and booster still can be at risk for serious illness from COVID. "The constant stress of wondering “Am I going to be OK?” and “What’s the future going to look like?” has been hard" for one older adult quoted for the article.  The article quotes several older adults who describe the impact this has had on them. 

And COVID isn't done with us yet.

Has the Pandemic Made You Less Active? If So, You Are Not Alone.

The New York Times a couple of weeks ago ran an article noting that during the pandemic, many elders were less active than before. The Pandemic Has Made Many Seniors Less Active explains that some who work remotely or just cut back on outings found they experienced physical decline.  Those who had COVID in varying degrees experienced even greater physical decline..

Nearly half of those 65 and older who had contracted Covid reported less ability to engage in physical activity like walking and exercising than before the pandemic — but so did about one-quarter of those who did not become infected. Smaller proportions of those uninfected said their ability to move around the house, and to do housework like dishwashing and dusting, had also declined.

Although some of that decline might reflect normal aging, the study measured changes over only a nine-month period. In people who did not develop Covid, “the most plausible reason for the decline is public health restrictions during the pandemic....” 

But even those who did not contract COVID still suffered some physical decline. One study  "found that almost 40 percent of those over 65 reported both reduced physical activity and less daily time spent on their feet since the start of the pandemic in March 2020. In this representative national sample, those factors were associated with worsened physical conditioning and mobility."

Although I don't think we need this reminder, the article offers it to us: "Physical function is key to living independently — the future that a great majority of older people envision for themselves. A loss of mobility and function across a considerable proportion of the senior population could mean increasing disability, a greater need for eventual long-term care, and higher Medicare and Medicaid costs.'"

Now-get up and take a walk!

Podcast on Nursing Home Neglect

The National Consumer Voice for Quality Long-Term Care is offering a podcast with Dr. Laura Mosqueda on Nursing Home Neglect: Preventing It and Getting Help. Here's a description of the podcast:

The pandemic has renewed concerns about the quality of care that residents receive in some nursing homes, and many family members have reported significant decline in the condition of their loved ones. Neglect and abuse of older adults is a long-standing problem that is under-reported and has not received the necessary attention and response from policymakers, yet it results in needless and preventable suffering and harm.

In this episode with Dr. Laura Mosqueda, a professor of Family Medicine and Geriatrics at the Keck School of Medicine at the University of Southern California, we talk about neglect, which is the failure to provide goods and services to an individual that are necessary to avoid physical harm, pain, mental anguish, or emotional distress. Neglect may or may not be intentional.

The link to the podcast is here. You can subscribe to the podcast series from this page as well as find information about the Consumer Voice's YouTube channel.

Congrats to Center for Medicare Advocacy on Win for Beneficiaries

This case has been going on for over a decade!

The Jan. 25 ruling, which came in response to a 2011 class-action lawsuit eventually joined by 14 beneficiaries against the Department of Health and Human Services, will guarantee patients the right to appeal to Medicare for nursing home coverage if they were admitted to a hospital as an inpatient but were switched to observation care, an outpatient service.

The court’s decision applies only to people with traditional Medicare whose status was changed from inpatient to observation. A hospital services review team can make this change during or after a patient’s stay.

The full opinion is available here.

P.S. I'm on the board of CMA and they do great work!

Roundup of Articles Part 2

Here are the rest of the news items I mentioned in yesterday's post.

Nursing Homes Bleed Staff as Amazon Lures Low-Wage Workers With Prime Packages

National Guard Empties Bedpans and Clips Toenails at Nursing Homes

Why Older Women Face Greater Financial Hardship Than Older Men

From my friend Morris Klein, Increasing Medicaid’s Stagnant Asset Test For People Eligible For Medicare And Medicaid Will Help Vulnerable Seniors

Nursing Hone Visitation FAQ ( CMS updated January 6, 2022).

A Catch-22 Trips Up Some in Legal Guardianship Who Try to Regain Independence

Man becomes first person in Colombia with non-terminal illness to die by legal euthanasia

and

Colombian woman dies by euthanasia after historic legal fight

and finally from my friend Professor Richard Kaplan, Richard L. Kaplan (Illinois; Google Scholar), When the Stepped-Up Basis of Inherited Property Is No More, 47 ACTEC L.J. 77 (2021) (see Tax Law Prof Blog for synopsis)

Now we are all caught up.  More next week!

 

 

Roundup of Articles

I've been off the grid for a while, so I have a backlog of articles for the blog.  I think they are interesting, even though they may be dated by a couple of months. So I'm going to list some of them here and if the topic interests you, click on the link to read the article.  There are so many, I'm not going to summarize or discuss them.

Lowe’s sees sales growth by helping baby boomers stay in their homes.

Costs and considerations for home health care of aging loved ones in Florida. (48 minute podcast plus accompanying article)

End-of-life conversations may be helpful to patients and families

From my friend Professor Naomi Cahn: Contextualizing Menopause in the Law.

The data that shows Boomers are to blame for the labor shortage

‘Greatest Generation’ runs counter to its wholesome image in survey on race, sex and combat during World War II

Private Equity Is Gobbling Up Hospice Chains And Getting Involved In The Business Of Dying

Three key numbers that explain America's labor shortage (discussing early retirement).

I have more for tomorrow's post and then I'll be "caught up" with the news!

Will Medicare Part B Premiums Drop in 2022?

Last fall I had blogged about the significant increase in the Medicare Part B premiums for 2022. Part of the increase was due to the cost of the new Alzheimer's drug.  There have been developments since the Part B premium was announced.  Here are a couple. First, the AP reported on January 10, 2022 that Medicare told to reassess premium hike for Alzheimer's drug.

" U.S. health secretary Xavier Becerra on Monday ordered Medicare to reassess a big premium increase facing millions of enrollees this year, attributed in large part to a pricey new Alzheimer’s drug with questionable benefits.  [This] came days after drugmaker Biogen slashed the price  [about in half]."  Based on that cut, the Secretary determined that a review of the 2022 premium was appropriate. This is no guarantee that the Part B premium will be reduced, but the article notes that beneficiaries will [not] see [an] immediate change to their costs, but Monday’s move could open the way for a reduction later in the year. The Department of Health and Human Services says it is reaching out to the Social Security Administration, which collects the premium, to examine options."

Second, Kaiser Health News  included summaries of stories from several news outlets regarding the decision by CMS regarding coverage of the new Alzheimer's drug  Medicare To Limit Coverage Of Contentious And Costly Alzheimer’s Drug.  For example, the AP story, Medicare limits coverage of $28,000-a-year Alzheimer’s drug, "The initial determination from the Centers for Medicare and Medicaid Services means that for Medicare to pay, patients taking Biogen’s Aduhelm medication will have to be part of clinical trials to assess the drug’s effectiveness in slowing the progression of early-stage dementia as well as its safety. Medicare’s national coverage determination would become final by April 11, following a public comment period and further evaluation by the agency."  The drug manufacturer disagrees with the decision.

So what will be the impact of the price drop, the reassessment and the coverage decision?  Stay tuned.

Budgeting for Medicare Increases?

Yesterday the New York Times ran what I consider to be an important article about Medicare costs to beneficiaries. How to Cope With Medicare’s Rising Costs focuses on how beneficiaries can plan for the rising costs of Medicare.  There was a lot of excitement over the 2022 SSA COLA increase, rightfully so, but that excitement would quickly evaporate when CMS announced the 2022 Medicare increases, especially the Part B premium, which is going up 14.55%.   Initially it was announced in part that the increase was due to the anticipated cost of the newly approved Alzheimer's drug. However, this week, the article notes, the manufacturer dropped the price of the drug. But will there be a commensurate drop in the Part B premium?

The Part B premium is not the only increase in out of pocket costs. The article discusses the deductible as well as the Part D costs and how those increases, especially for drugs, affect beneficiaries' ability to access health care and take their meds.  Remember that one provision of the Build Back Better is to allow CMS to negotiate some drug prices and cap Part D out-of-pocket costs, as well as that for insulin.

The article contains a section on how to budget for these increases. In addition to including plan choices, the article offers several more suggestions, such as a health savings account, delaying Social Security, and annually reviewing plan choices during each fall's open enrollment.

 

SNF Staffing Standards-New Report

Yesterday I blogged about California's consideration of tying Medicaid funding for SNFs to certain quality of care benchmarks. Today I wanted to let you know about a new report released by the National Consumer Voice for Quality Long-Term Care. State Nursing Home Staffing Standards SUMMARY REPORT opens noting that

"Chronic understaffing has been a serious problem in nursing homes for decades and has been exacerbated by the COVID-19 pandemic. While there are numerous factors contributing to this problem, one major cause is the lack of adequate minimum staffing standards at both the state and federal levels. Minimum standards ensure that staffing will not fall to a level that would be harmful to residents. Local, state, and national advocates have pushed for minimum staffing standards for years. Knowledge of the range of state staffing requirements can be very useful in these efforts. To that end, the focus of this summary report is to present staffing requirements from each state and analyze how they compare to each other and to levels recommended by research conducted for the federal government. This information can also be helpful to policymakers, researchers, and the media.

The report discusses the connection between staffing and quality care, the research on minimum staffing standards, laws and regs at both state and federal levels, an analysis of state staffing standards, recent developments, and concludes with this

Twenty years after the CMS study found that at least 4.1 hprd of direct care nursing staff time are needed just to prevent poor outcomes, state staffing requirements, with a few exceptions, are nowhere near that recommended level. Only the District of Columbia requires this overall level of staffing, and only six states mandate the presence of a registered nurse 24 hours a day regardless of facility size. Despite what is known about the relationship between staffing levels and quality care, staffing standards in almost every state remain severely low. Residents have waited decades for adequate staffing around the clock. Every day that passes without sufficient staffing jeopardizes their health, safety and welfare. Ongoing and robust advocacy is needed at both the federal and state levels to provide residents with the care to which they are entitled and that they deserve.

The full report is available here, a summary here, Appendix A (guide to state staffing standards) here, and Appendix B (state staffing standards comparison) here.

California Reconsidering Criteria for SNF Medicaid Funding

Well, as I write this, it looks at though the world is heading for another COVID surge.  Thus, this recent article from Kaiser Health News is particularly timely. After ‘Truly Appalling’ Death Toll in Nursing Homes, California Rethinks Their Funding opens with this sobering statistic: about 1 of every 8 of those California residents who died due to COVID resided in SNFs which translates to roughly 9,400, with an added  56,275 SNF residents with confirmed COVID who survived it.  As a response, the article notes, that the Governor's office is looking into a proposal that ties SNF funding to performance, with "those that meet new quality standards would get a larger share of state funding than those that don’t."

There will be several hurdles, and the industry is gearing up to oppose it while families of those who died are prepared to support it.  For example, the CEO of  California Association of Health Facilities, doesn't think the facilities should bear the blame, since "residents naturally at higher risk than the rest of the public, [and] facilities were forced to accept hospital transfer patients who had not been tested for the virus, they couldn’t get adequate supplies of personal protective equipment, and they suffered as staff members got covid in the community and then brought it into work."  The counter-point from various studies notes that SNFs "with fewer nursing staff members experienced significantly higher covid infection and death rates. That devastating outcome is bolstering a two-decades-long argument by patient advocates that nursing homes must hire more workers."

Staffing is not the only issue, and the article explores others, including the profits made by the various chains.  California is not alone in considering actions to improve quality of care.  I'm sure there will future blogs on this topic.

California Aid-in-Dying Statute Revisions

You may have already read about this, but just in case....  Kaiser Health News has reported about changes to California's aid-in-dying law.   New California Law Eases Aid-in-Dying Process explains that "in October, Gov. Gavin Newsom signed a revised version of the law, extending it to January 2031 and loosening some restrictions in the 2015 version that proponents say have become barriers to dying people who wish to avail themselves of the law." This change becomes effective in 2022. 

With the original law, as an example, "patients who want to die must make two oral requests for the medications at least 15 days apart. They also must request the drugs in writing, and two doctors must agree the patients are legally eligible. After receiving the medications, patients must confirm their intention to die by signing a form 48 hours before ingesting them."

Now, with the changes, "the revised law reduces the 15-day waiting period to just two days and eliminates the final attestation [and] requires health care facilities to post their aid-in-dying policies online. Doctors who decline to prescribe the drugs — whether on principle or because they don’t feel qualified — are obliged to document the patient’s request and transfer the record to any other doctor the patient designates."

The article offers poignant examples, provides statistics, and discusses the approach of insurance companies for coverage of the prescription ("[M]ore than 60% of those who take the drugs are on Medicare, which does not cover them. Effective life-ending drug combinations are available for as little as $400.")