Wednesday, December 19, 2018
Recently I had a chat with a lawyer I've known for years who does a very good job representing large nursing home chains. We found ourselves shaking our heads about a series of news stories reported by central Pennsylvania's Patriot News focusing on care facilities formerly operating as part of the Golden Living chain. See the investigatory report, Still Failing the Frail.
Apparently, even after pressured transfers of the facilities to different companies, presumably companies with better management and better financial resources, many of them "continue to rack up citations with the state Health Department" for substandard practices. I asked the lawyer whether he knew of any nursing home chain that has been able to pull out of death spiral? He couldn't remember one.
There is very little margin when low-income residents depend on Medicaid for payments. Once a facility is affected by fines and pressures to increase staffing, the margin becomes even tighter. Few states want to assume the roles of trustee or receivers for such properties. The article concludes that one necessary step is to increase Medicaid funding.
Although researchers recommend that nursing homes provide at least 4.1 hours of care per resident per day, it remains an open question whether all nursing homes can afford to do that.
State and federal governments are the primary payers for the vast majority of nursing home residents. Residents receiving short-term rehabilitation are generally covered by Medicare, administered by the federal government. Long-term residents are generally covered by Medicaid, administered by state governments.
The problem is that state Medicaid programs, as in Pennsylvania, pay nursing homes far less than federal Medicare – sometimes as much as a third.
Although nursing home advocates and some researchers believe for-profit nursing homes routinely skimp on care in order to paid their profits, there are also genuine concerns about whether Pennsylvania’s Medicaid funding is adequate.
Researchers recommend how much of existing Medicaid and Medicare dollars are going to profit and administrative costs in homes. That would help determine whether Medicaid rates need to be raised and, if staffing standards are also raised, how much additional funding they need to provide those levels.
For some states, such as Pennsylvania, the Medicaid funding formula is part of the challenge. As discussed in the series, other states have been able to create direct payment models to assure better accountability for patient care.
Monday, December 10, 2018
For anyone working in legal fields where adult guardianships may be an option, for anyone teaching elder law, health care law, constitutional law or even landlord-tenant law, a recent New York Times article, "I'm Petitioning . . . for the Return of My Life," is an important read.
On a threshold level, this is a well-told tale of one woman, Ms. Funke, who becomes subject to an intervention under New York adult protective services law, and, eventually, to a full-blown guardianship proceeding. It can be easy to become enraged on behalf of Ms. Funke as you read details about her past life as a freelance journalist and world traveler, and compare it to the limitations placed on her essential existence under a guardianship.
The article is a rather classic example of using one tragic story, a human story, to paint a picture of a government process gone wrong. At several points in the article, the writer, John Leland, offers questions that suggest some conclusions about how unfair the process has been to Ms. Funke. The writer asks, for example,
"If you were Ms. Funke, shouldn't you be allowed to withdraw into the covers [of your bed] if you wanted to? And the clutter in your apartment -- couldn't people understand that a writer needs materials around? Even if she were evicted, she had money to start somewhere else. Courts evict people with lots less [than she appears to have]. "
It's implied that the answers to those questions may outweigh the fact that the protective services intervention prevented the landlord from completing an eviction of Ms. Funke, an eviction that would have forced her out of her apartment of 40+ years.
Other, less dramatic details in the article suggest that for every Ms. Funke, there may be other people -- an unknown number of people in New York -- who are also very alone and who have also lost control over their lives because of physical frailty, mental decline, depression or other facts, and who are rescued with the help of a protective services intervention. Sometimes the intervention interrupts the decline, usually with the help of family member or friend who volunteers to help, sometimes acting with a measure of authority under a power of attorney, making a guardianship unnecessary.
The challenge, of course, is knowing when to help (and how far to go), and when to preserve the individual's right to make choices that appear unsafe. Some of the most complex cases involve people who have spent a lifetime on a unique and often solo path, and now have few family members or friends to help them as that path becomes rockier with age or illness, especially when they have no plan for the future. In the face of such facts, as one person interviewed in the article observes, guardianships are a "blunt instrument."
Something I wrote about last week also figures into the New York situation -- the apparent absence of a guardianship case tracking or monitoring system.
But another issue I'm concerned with is also suggested. At one point, an interview with one of Ms. Funke's guardians, a so-called professional (in other words, not a family member or a public guardian) discloses he does not know how far his authority as guardian extends. For example, would he be allowed to prevent her from marrying? He responded, he did not know.
It would seem that guardians and other agents, alleged incapacitated persons, -- and family members -- could all benefit from greater information, and to ongoing education on their rights, duties and options. That was also a theme emerging from article asking the question "Where's Grandma?" that I linked to last week and that I link to again here.
My thanks to the several folks who suggested this New York Times article for discussion on our Blog, including my Dickinson Law colleague, international human rights expert, Dermot Groome.
December 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Wednesday, December 5, 2018
I have collected four items regarding nursing homes, that I thought I'd summarize in one post.
Regular readers will recall that Florida now requires SNFs to have generators (after last year's hurricane). Last month's Health News Florida reported that many nursing hones are seeking extensions of time on the requirement to have generators. Nursing Homes Seek More Time On Generator Requirements notes that "[m]ore than 40 percent of Florida nursing homes are asking health-care regulators for more time to meet backup-power requirements pushed by Gov. Rick Scott after Hurricane Irma last year... But ... the state’s top health-care regulator, said his agency won’t approve waiver requests for deadbeat facilities that haven’t worked over the past several months to carry out emergency backup-power plans." Slightly more than 25% of the facilities are in compliance and over half of ALFs are. Some ALFs not in compliance are the focus of penalties, "the state has moved ahead with penalizing a handful of ALFs that aren’t in compliance. In November, the state has entered into settlement agreements with more than a dozen ALF providers across the state to settle allegations that they failed to meet the requirements, according to a review of information on a state website."
The Washington Post ran an article last month, Overdoses, bedsores, broken bones: What happened when a private-equity firm sought to care for society’s most vulnerable. The article focused on the ownership of of a chain owned by "the Carlyle Group, one of the richest private-equity firms in the world [where], the ManorCare nursing-home chain struggled financially until it filed for bankruptcy in March. During the five years preceding the bankruptcy, the second-largest nursing-home chain in the United States exposed its roughly 25,000 patients to increasing health risks, according to inspection records analyzed by The Washington Post." The article includes a response from the chain as well as the private equity group:
Carlyle and HCR ManorCare representatives said care at the nursing homes was never compromised by financial considerations. The cost-cutting trimmed administrative expenses, not nursing costs, they said. The number of nursing hours provided per patient stayed fairly constant in the years leading up to the bankruptcy, according to the figures that the company reported to the government.
HCR ManorCare officials also disputed the idea that quality at the homes had suffered in recent years. They said their nursing homes offered excellent service based on the ratings issued by Medicare, the federal government’s insurance program for older Americans. ManorCare homes averaged 3.2 stars in the years before bankruptcy, which was slightly below the U.S. average. Some watchdog groups, such as the Center for Medicare Advocacy, are critical of the five-star rating system, however, because it relies on unaudited data reported by nursing homes.
The article examined complaints in several states, reported on the views expressed by the private euity firm, including the role of Medicare reimbursements and reported that "[a]fter the bankruptcy, the nursing home chain was bought by Promedica Health, a nonprofit group."
Bloomberg Law reported last week that payroll data is being used to examine staffing. Sparse Nursing Home Staffing to Be Sniffed Out in Payroll Data explains that "[t]he payroll data will be used to identify nursing homes that have a significant drop in staff on weekends or have several days in a quarter without a registered nurse on site, the federal Medicare agency said Nov. 30. Nursing homes must have a registered nurse on site every day for eight hours, the agency said on its website."
In that same vein, Kaiser Health News reported Feds Order More Weekend Inspections Of Nursing Homes To Catch Understaffing. The payroll data mentioned in item #3 plays a role. "The federal Centers for Medicare & Medicaid Services said it will identify nursing homes for which payroll records indicate low weekend staffing or that they operate without a registered nurse. Medicare will instruct state inspectors to focus on those potential violations during visits." Does this mean there will be a flurry of inspections? No. As the article explains, "[t]he new directive instructs inspectors to more thoroughly evaluate staffing at facilities Medicare flags. The edict does not mean a flurry of sudden inspections. Instead, Medicare wants heightened focus on those nursing homes when inspectors come for their standard reviews, which take place roughly once a year for most facilities."
Tuesday, December 4, 2018
A recent article mentioned that the number of elders in Texas who will need SNF care is going to be a "silver tsunami." The Houston Chronicle published this article, Silver Tsunami set to hit Texas nursing homes where the article acknowledges "[m]ore than 12 percent of the Texas population is over 65, and that number is growing. According to the Texas Demographic Center, the over-65 population across the state is projected to increase by more than 262 percent by 2050." But it is more than the numbers creating this "silver tsunami: the impact is magnified "by the increasingly complex medical conditions — such as Parkinson’s and Alzheimer’s — of aging Texans needing nursing home care. According to data from the Alzheimer’s Association “2018 Texas Facts and Figures,” more than 380,000 of the state’s residents have already developed Alzheimer’s disease or other dementia. In Texas, Alzheimer’s is the sixth leading cause of death, and its prevalence is expected to increase by almost 30 percent by 2025."
The article also highlights the fact that in many instances the caregivers themselves will be elders.
We all need to be planning ahead.....
Thursday, November 1, 2018
The National Consumer Law Center sent out an email listing resources for attorneys and others helping elders recover from natural disasters. The email described the situation:
Older adults living in communities hit by natural disasters disproportionately suffer emotional trauma and financial hardship after the event. Age-related changes, including decreases in mobility and cognitive abilities make it harder for older adults to navigate the recovery process and access resources to repair or rebuild their homes. Once the immediate danger has passed, older adults will need assistance from insurance, government, and nonprofit organizations or other aid agencies to rebuild their home and community support system. In the days and weeks after the disaster older adults are forced to deal with a wide variety of issues, including home repair, reconnecting utilities, and making payments, including mortgage, credit cards, and student loans. Unlike many others affected by disasters, older adults may have fewer private assets to aid in recovery making the process to rebuild financially more difficult. Here are some resources the National Consumer Law Center (NCLC) has compiled to help guide advocates in advising older adults.
Issue Brief: Assisting Homeowners with Reverse Mortgages after a Natural Disaster: A Guide for Advocates, October 2018
Webinar: Assisting Older Homeowners after a Natural Disaster (National Center on Law and Elder Rights), June 20, 2018:
Free Webcast: Assisting Older Homeowners After a Natural Disaster, June 2018
Issue Brief: Helping Older Homeowners Recover from Natural Disasters, June 2018
Monday, October 29, 2018
Law students from Penn State's Dickinson Law attended sessions hosted by LeadingAge and National Continuing Care Residents Association (NaCCRA) on October 28 in Philadelphia. It was my pleasure to share this experience with students. I see these opportunities as a great way to think about the wider world of business and law opportunities, and to consider how law and aging can intersect.
In the morning, we heard from A.V. Powell about best practices for actuarial evaluations to promote greater understanding of financial issues for continuing care and life plan communities across the country. At lunch we met Parker Life's CEO Roberto Muñiz, shown here on the right with Dickinson Law student Mark Lingousky, and discussed Roberto's ongoing projects such as working to established coordinated care options not just in Parker's center of operations in New Jersey, but also in Roberto's family home in Puerto Rico.
After lunch we attended a LeadingAge educational program on "Legal Perspectives on Provider Operational Issues," presented by four attorneys from around the country. Afterwards the students commented that they were surprised by how many of the topics had come up in one of Dickinson Law's unique 1L courses, on Problem Solving and Lawyering Skills. It is great to see such correspondence between real life and law school life. Of particular interest was hearing how residential communities are coping with issues connected to legalization of marijuana, including medical marijuana and so-called recreational marijuana, both from the context of resident use and potential use by employees.
On the drive home from Philadelphia, I had the chance to debrief with the students about what most interested them at the conferences. They quickly said they appreciated the opportunity to talk with engaged seniors about what matters concerned them. Indeed, after the attorneys leading the afternoon program took a quick poll at the outset to ask how many of the members of the audience were attorneys (outside or inside counsel), operational staff, or board members, one student leaned into me and said, "They forgot to ask how many people in the audience were residents or consumers of their services!"
Music to our ears, right Jack Cumming?
October 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management | Permalink | Comments (1)
Sunday, October 28, 2018
The latest issue of the Hastings Center Report is devoted to examining what gives a good life to someone in later life. Volume 48, Issue S3 is titled What Makes a Good Life in Late Life? Citizenship and Justice in Aging Societies. All 15 of the articles are available for free. The topics run the gamut from social policies to age-friendly initiatives to housing to communities to advance directives for people with dementia, to name a few. Be sure to read the introduction before reading any of the individual articles, so you have the context of the volume. Here's the abstract for the introduction
The ethical dimensions of an aging society are larger than the experience of chronic illness, the moral concerns of health care professionals, or the allocation of health care resources. What, then, is the role of bioethics in an aging society, beyond calling attention to these problems? Once we’ve agreed that aging is morally important and that population‐level aging across wealthy nations raises ethical concerns that cannot be fixed through transhumanism or other appeals to transcend aging and mortality through technology, what is our field’s contribution? We argue that it is time for bioethics to turn toward social justice and problems of injustice and that part of doing so is articulating a concept of good citizenship in an aging society that goes beyond health care relationships.
October 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Science | Permalink | Comments (0)
Thursday, October 25, 2018
The Long Term Care Community Coalition has released a report on promising practices for ALFs. Assisted Living: Promising Policies and Practices runs 52 pages and is divided into 13 sections, 4 of which focus on staffing. The introduction makes the case for why residents of ALFs are in need of stronger protections:
Assisted living facilities (ALFs) are increasingly viewed by seniors and their families as a desirable option for residential care, including for those in need of a nursing home level of care but who wish to avoid the institutional environment that typically defines life in a nursing home... Despite the billions of dollars in public funding every year, there are no federal rules governing the standards of care in ALFs. This lack of federal oversight not only means that care in ALFs is completely regulated by individual states, but also that, even when their needs and vulnerability are similar, ALF residents do not have a comparable right to quality care and quality of life that nursing home residents are entitled to under federal law.
In the absence of federal standards, ALF residents are only protected to the extent that individual states have developed regulatory requirements to ensure the safety and dignity of their residents. Unfortunately, according to a 2018 GAO report, Medicaid Assisted Living Services: Improved Federal Oversight of Beneficiary Health and Welfare is Needed, all too often states fail to protect ALF residents or even keep track of when they are harmed. The GAO found that there were an astonishing 23,000 reported cases of “critical incidents,” including abuse, neglect, exploitation, and death, in ALFs across just 22 states in 2014. While this number is significant, there is little doubt that the extent to which critical incidents and other problems occur is, actually, far greater, since only 22 of the 48 states surveyed by the GAO tracked and reported critical incidents. Moreover, the review only included Medicaid assisted living, which covers a small minority of ALF residents (most Americans pay privately for assisted living services). (citations omitted)
Each section includes best practices and recommendations with state specific examples. Check it out!
After you finish reading the report, check out the accompanying Assisted Living State Requirements Chart. Handy!
Wednesday, October 24, 2018
A notice about an upcoming continuing legal education program struck me as an apt sign of the times in elder law planning. The Pennsylvania Bar Institute explains:
Many clients are members of "modern family" structures. Our experienced faculty — with different legal perspectives — will explore the issues and opportunities available when planning for the long term care needs of clients in blended and non-traditional families. At the intersection of family law and elder law, they will examine various techniques, including long term care planning for clients with children from previous marriages and planning for unmarried partners.
Receive practical guidance on counseling clients
• Representation and conflict issues
• Information gathering tips
Examine issues at the intersection of family law and elder law
• Pre and post nuptial agreements
• Cohabitation agreements
• Gifts to divorced or separated children, alimony & child support issues
Explore long term care planning tools and techniques
• To marry or not to marry for long-term care
• Use of irrevocable trusts
• High assets/income: private pay, life insurance, and long term care insurance
• Spousal refusal
• Transfers by the community spouse after Medicaid eligibility
• To gift or not to gift: single individual vs. community spouse
For more, see Long Term Care Planning for Blended and Non-traditional Families, scheduled for first airing on November 27, 2018.
October 24, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 15, 2018
The New York Times ran an article on the demand for nursing home beds. In the Nursing Home, Empty Beds and Quiet Halls opens by explaining that a once vibrant facility now stands closed due to a drop in demand. According to the article, "[t]he most recent quarterly survey from the National Investment Center for Seniors Housing and Care reported that nearly one nursing home bed in five now goes unused. ... Occupancy has reached 81.7 percent, the lowest level since the research organization began tracking this data in 2011, when it was nearly 87 percent." The occupancy rate has been trending downward; concomitantly facilities close, and according to the article, somewhere between 200-300 annually close. The article points out what you are likely thinking-with the number of baby boomers wouldn't the demand be increasing rather than decreasing?
The article hypothesizes as to why this may be occurring and suggests:
Increased regulations and more financial belt-tightening
Hospitals' use of observation status,which thus affects Medicare coverage for subsequent SNF care.
More surgeries on an out-patient basis
Increasing number of Medicare Advantage plans.
- Increased competition through other housing options
- The shift to Medicaid covering care in the community, with "Money Follows the Person [having] moved more than 75,000 residents out of nursing homes and back into community settings."
The article speculates whether this trend will reverse itself once the boomers start reaching 80 and beyond. The article also discusses whether the lower demand provides more options for those in need of nursing home care.
Sunday, October 14, 2018
A couple of weeks ago I blogged about "reminiscence therapy" used for people with dementia. The New Yorker has added to the literature on this topic with the recent article, The Comforting Fictions of Dementia Care.
The article describes different efforts by facilities, from common rooms designed to resemble eras gone by giving residents baby dolls that simulate real babies. For those who ask routinely to go home, "many nursing homes and hospitals have installed fake bus stops. When a person asks to go home, an aide takes them to the bus stop, where they sit and wait for a bus that never comes. At some point, when they are tired, and have forgotten what they are doing there, they are persuaded to go back." One company based in Boston used technology to simulate conversations. Known as "Simulated Presence Therapy" this system "mak[es] a prerecorded audiotape to simulate one side of a phone conversation. A relative or someone close to the patient would put together an “asset inventory” of the patient’s cherished memories, anecdotes, and subjects of special interest; a chatty script was developed from the inventory, and a tape was recorded according to the script, with pauses every now and then to allow time for replies. When the tape was ready, the patient was given headphones to listen to it and told that they were talking to the person over the phone." The article notes that those with short term memory loss can listen to the tape routinely. Technology has made simulations even more realistic and interactive, down to "footage of a passing scene [giving] the impression of movements."
The article features details of various enterprises and highlights at least one facility's efforts. It's definitely worth reading.
Thanks to my colleague, Professor Bauer, for sending me the link.
Wednesday, October 10, 2018
Pennsylvania's Legislature Stalls Guardianship Reform But Moves Forward on Controversial "Protection" Bill
As recent readers of the Elder Law Prof Blog will know, the Pennsylvania legislature is in the waning days of the 2018 legislative year. Despite strong support for basic reforms of adult guardianship laws, the legislature has once again stalled action on Senator Greenleaf's guardianship reform package, Senate Bill 884. Apparently the latest delay arose when one senator objected to a provision requiring criminal background checks for proposed new guardians, because of his own experiences as a guardian for an adult child.
Guardianship reform has been on the legislative docket since at least 2014 when the Pennsylvania Supreme Court's Elder Law Task Force issued its comprehensive report recommending much needed changes, including higher standards for appointed guardians. But this one senator's late-breaking concerns triggered another delay. Similar legislation was approved by the Senate in the previous legislative term, only to be stalled that time in the House.
Thus, the contrast with another bill affecting seniors, one that is rushing through the Pennsylvania Legislature in 6 months, is particularly dramatic. House Bill 2291, as most recently amended in Printer's Version No. 3917, was introduced for the first time in April 2018 and cleared the Pennsylvania House with a unanimous vote on October 9, 2018.
The bill has been cast as "protection" of seniors against unwanted intrusions on their privacy by government investigators. Sounds like a commendable purpose. But the much larger purpose seems to be about protecting "providers" of certain types of housing for seniors, including "independent living units" in continuing care retirement communities (CCRCs, also called Life Plan Communities) and publically-funded "senior multifamily housing units," from investigation by Pennsylvania authorities where there are potential concerns about suitability of that type of unit for the needs of particular seniors, especially those at risk of self-neglect or third-party exploitation because of dementia. One member of the House, a legislator from Westmoreland County where a CCRC has been investigated (apparently the only such investigation in the state), has been quite successful in attracting support for his bill to prevent such investigations from happening in the future.
Now the Pennsylvania Senate will have all of three days -- its last three working days in 2018 -- to consider HB 2291 for the first time.
Has HB 2291 been carefully considered by all the stakeholders, including seniors and their families? It may not matter when the train is running at full steam.
October 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, October 5, 2018
Dwindling Numbers in Traditional Skilled Care Facilities Have Implications for Other Forms of Senior Living
The New York Times tracks more demographic information about occupancy in skilled care facilities:
For more than 40 years, Morningside Ministries operated a nursing home in San Antonio, caring for as many as 113 elderly residents. The facility, called Chandler Estate, added a small independent living building in the 1980s and an even smaller assisted living center in the 90s, all on the same four-acre campus.
The whole complex stands empty now. Like many skilled nursing facilities in recent years, Chandler Estate had seen its occupancy rate drop.
“Every year, it seemed a little worse,” said Patrick Crump, chief executive of the nonprofit organization, supported by several Protestant groups. “We were running at about 80 percent.”
Staff at the Chandler Estate took pride in its five-star rating on Medicare’s Nursing Home Compare website. But by the time the board of directors decided it had to close the property, only 80 of its beds were occupied, about 70 percent.
Revenue from independent and assisted living couldn’t compensate for the losses incurred by the nursing home.
As seniors elect to stay "at home" and as families struggle to make that happen, we are seeing ever evolving concepts in how to provide appropriate care and companionship. For more read, In the Nursing Home, Empty Beds and Quiet Halls.
Friday, September 28, 2018
The Aging, Law and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop as part of the Law and Society Association Annual Meeting scheduled for Washington D.C. from May 30 through June 2, 2019.
For this workshop, proposals for presentations should be submitted by October 22, 2018.
This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.
The CRN encourages paper proposals on a broad range of issues related to law and aging. For this event, organizers especially encourage proposals on the following topics:
- The concept of dignity as it relates to aging
- Interdisciplinary research on aging
- Old age policy, and historical perspectives on old age policy
- Sexual Intimacy in old age and the challenge of “consent” requirements
- Compulsion in care provision
- Disability perspectives on aging, and aging perspectives on disability
- Feminist perspectives on aging
- Approaches to elder law education
In addition to paper proposals, CRN also welcomes:
- Volunteers to serve as panel discussants and as commentators on works-in-progress.
- Ideas and proposals for themed panels, round-tables, or a session around a new book.
If you would like to present a paper as part of a the CRN’s programming, send a 100-250 word abstract, with your name, full contact information, and a paper title to Professor Nina Kohn at Syracuse Law, who, appropriately enough also now holds the title of "Associate Dean of Online Education!"
September 28, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Statistics, Web/Tech, Webinars | Permalink | Comments (0)
Thursday, September 27, 2018
First the bad -- or at least frustrating -- news. On Thursday, September 27, we received word that Senate Bill 884, the long-awaited legislation providing key reforms of guardianship laws in Pennsylvania, was now "dead" in the water and will not move forward this year. Apparently one legislator raised strong objections to proposed amendments to SB 884, amendments influenced by recent high-profile reports of abuse by a so-called professional guardian who had been appointed by courts in multiple cases in eastern Pennsylvania.
The objections reportedly focused on one portion of the bill that would have required both law guardians (typically family members) and professional guardians to undergo a criminal background check before being appointed to serve. The amendment did not condition appointment on the absence of a criminal record, except where proposed "professional guardians" had been convicted of specific crimes. For other crimes or for lay guardians, the record information was deemed important to permit all interested parties and the court to make informed decisions about who best to appoint.
What is next? Pennsylvanians will look to new leadership in the 2019-20 session in the hope for a new bill that resolves differences and that can make it through both houses. In the meantime, the courts are already moving forward with procedural reforms, adopted in 2018 at the direction of the Pennsylvania Supreme Court.
And that leads us to a more positive note about guardianship reform in Pennsylvania. Pennsylvania Common Pleas Judge Lois Murphy testified this week during a Senate Judiciary Committee meeting about the Pennsylvania Courts' new Guardianship Tracking System (GTS). It is now operational in 19 counties (out of 67 total counties) in Pennsylvania, including coming online in the major urban counties for Philadelphia and Pittsburgh. Judge Murphy reported that GTS is "already paying dividends," and she gave the example of a case in which the reporting system triggered a red flag for an estate worth more than $1 million, much higher than originally predicted, making appointment of different guardian more appropriate.
Judge Murphy predicts that as the tracking system becomes operational statewide, it should generate valuable answers, such as how many persons are subject to guardianships at any point in time, how much in assets are under management, what percentages of the pointed guardians are family members (as opposed to professionals), and what percentages of those served are over or under age 60. The hope is that GTS will also permit coordination of information about appointed guardians in state courts with information in the federal system on those appointed as Social Security representative payees, thus, again, providing more comprehensive information about trustworthiness of such fiduciaries.
You can see Judge Murphy's testimony, and hear her reasons for criminal background checks and appointment of counsel to represent alleged incapacitated persons, along with the views of retiring Senator Greenleaf and Senator Art Haywood, in the recording of the September 24 hearing recording below.
Judge Murphy testifies from approximately the 35 minute mark to the 43 minute mark, and again from 1 hour 33, to one hour 44.
Bottom line for the week -- and perhaps the session? You can certainly grow old just waiting for guardianship reform in Pennsylvania.
September 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0)
Monday, September 24, 2018
From The New York Times, a well-told tale from siblings who recently "joined the ranks of the 15 million or so unpaid and untrained family caregivers for older adults in this country," calling them the nation's invisible work force. As one son admits:
The work takes its toll. These sons, daughters, husbands and wives are at increased risk of developing depression, as well as physical and financial difficulties, including loss of job productivity. Being sick and elderly in this country can be terrifying. Having a sick and elderly loved one is often a full-time job.
As the workload increased, we hired help, as much for ourselves as for our parents. But after some items were stolen, we realized we had to be more careful about whom we allowed into our parents’ home. Older adults in this country lose almost $3 billion a year to theft and financial fraud. Nearly every week my father instructed us to donate money to someone who had sent him a generic email appeal. It fell on us to keep our parents from being exploited.
With millions of elderly adults requiring assistance with daily living, physicians should make it routine practice to ask family members whether they can provide the requisite care. Many of these potential caregivers, ill or stressed themselves, simply cannot.
For the full article, read When Family Members Care for Aging Parents.
My thanks to colleague Laurel Terry at Dickinson Law for sending the link to this article!
Sunday, September 23, 2018
My colleague and dear friend, Professor Mark Bauer, sent me this story from CNN. Kicked out of assisted living: What you can do focuses on the situation where "[a]cross the country, assisted living facilities are evicting residents who have grown older and frail, essentially saying that 'we can't take care of you any longer.'" This happens more often than you think. The article cites 2016 statistics thath show "[e]victions top the list of grievances about assisted living received by long-term care ombudsmen across the U.S. In 2016, the most recent year for which data are available, 2,867 complaints of this kind were recorded -- a number that experts believe is almost surely an undercount."
The article notes often there is little recourse, especially with regulations at state levels varying. The reality?
While state regulations vary, evictions are usually allowed when a resident fails to pay facility charges, doesn't follow a facility's rules or becomes a danger to self or others; when a facility converts to another use or closes; and when management decides a resident's needs exceed its ability to provide care -- a catchall category that allows for considerable discretion.
Unlike nursing homes, assisted living facilities generally don't have to document their efforts to provide care or demonstrate why they can't provide an adequate level of assistance. In most states, there isn't a clear path to appeal facilities' decisions or a requirement that a safe discharge to another setting be arranged -- rights that nursing home residents have under federal legislation.
Then there are situations where the ALF takes the position they can't care for the resident any longer, or transfers the person to the hospital and refuses to allow them to return on discharge. As is often the case, the article notes the ALFs offer justifications for the evictions.
The article suggests these tips for prospective residents and families: "ask careful questions about what the facility will and won't do... What will happen if Mom falls or her dementia continues to get worse? What if her incontinence worsens or she needs someone to help her take medication?... Review the facility's admissions agreement carefully, ideally with the help of an elder law attorney or experienced geriatric care manager. Carefully check the section on involuntary transfers and ask about staffing levels. Have facility managers put any promises they've made ... in writing." Get a doctor's evaluation when the ALF says it can't provide the care, contact the long-term care ombudsman, file suit, seek relief under the ADA and look at adjusting expectations.
The article is accompanied by a video. Check it out. Thanks for Professor Bauer!
Thursday, September 20, 2018
Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws, here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?
Troubled histories have emerged across the nation. Public concern has grown around the need for more careful consideration of the roles played by guardians. For example, events in recent years have highlighted the following problems:
- In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018.
- In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals. This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
- In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.
The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians. The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.
While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards. Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System. The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries.
September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 17, 2018
As anyone who has a loved on in a care setting can probably attest, the individuals who work there have tough jobs.
I was interested to read a McKnight's Senior Living commentary that focuses on a problem that may not be easy for the public to identify, the intentional use of "part-time" help to avoid an obligation to pay benefits for full time workers.
The author describes one woman who works 30 hours per week for each of two different employers -- that is 60 hours per week of hard work without benefits such as employer-sponsored health insurance. John O'Connor writes in an important column (with a title that could perhaps, unfortunately, be misunderstood because of the reference to a Hispanic name), Senior Living Has Way Too Many Marias:
We often hear about the labor challenge in senior living. To be sure, it's very real. There is a lot of competition, and conditions are especially difficult these days. It's not easy to find and keep people willing to work for the wages that are available.
But if we are going to be honest, at least part of the problem has little to do with unforgiving external conditions and more to do with conditions some operators have decided to put in place.
To get more to the point, many communities simply refuse to hire full-time workers. From an economics standpoint, that is understandable. But it doesn't do much for the Marias of the world. And there are a lot more of them out there than many operators would like to admit.
Thursday, September 13, 2018
State Regulators Seek to Revoke Licenses of California Facilities for Failures During Fire Emergency Response
Flying into California for Labor Day weekend was a vivid reminder for me as an East Coast resident of the devastation being wrought by wildfires on the West Coast.
News articles also call attention to the need for careful advance planning and training by senior care communities -- however labeled or regulated, and wherever located -- for emergencies such as fires. Reading recent articles also demonstrates that just because you are in a "high-end" facility, administrators may not have a functional plan.
As detailed in a written complaint filed the first week of September 2018, California regulators are seeking to revoke the licenses of two Santa Rosa facilities operated under the umbrella of Oakmont Senior Living endangered by wildfires on October 8-9, 2017. The complaint also seeks lifetime bans for individual administrators. While there were no deaths of residents or staff at either location, one location, Villa Capri, was completely destroyed in the fire.
The state's complaint alleges inadequate staffing to handle nighttime evacuations, plus failure to comply with emergency and evacuation procedures, either because of inadequate knowledge or training on the plans for the administrators and staff that were present. The complaint describes a bus that could have been used to facilitate evacuation, but the on-duty staff did not have keys. It is alleged that because of these failures, "no staff were at Villa Capri to assist with the evacuation of more than 20 remaining elderly and infirm facility residents." Family members of the residents and emergency responders conducted the remaining evacuations at both locations.
The facilities, described in news articles by various labels ranging from "nursing homes" (the label used in the first line of a New York Times article) to "luxury retirement communities" (as described in the Mercury News), were licensed under California law as "residential care facilities for the elderly." As such, they were subject to regulations requiring appropriate emergency plans, including evacuation plans. It appears that Villa Capri had 62 units devoted to "memory (dementia) care" and assisted living. The second community, Varenna at Fountaingrove, is reported to have had 228 residents, including many who lived in individual "casitas," and 14 residents who needed "care and supervision" or "hospice."
The state's suit comes a few days after news of a reported settlement of a civil suit for undisclosed terms, filed on behalf of 17 residents of Villa Capri.
September 13, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)