Friday, July 5, 2019

Does the ALF Industry Need Federal Oversight?

That was the question posed in a recent article published in Cleveland.Com.  Amid growth of assisted living, some renew calls for federal oversight opens with an examiniation of hte requirements to be employed as an aide in ALFs.

Just read this to get a sense of the issues illustrated in this article:

The number of assisted-living centers in the United States has jumped more than 150 percent in the past 20 years, fueled by an increase of residents with cognitive issues, a willingness of facilities to take more frail patients, and families who wish to avoid nursing homes.

But while the centers’ clientele has changed dramatically, there have been few efforts to systemically re-evaluate staffing or training guidelines necessary to properly serve residents. This has led some advoctates of the elderly to renew the call for federal oversight of the facilities, much like nursing homes.

For instance, nearly half of the nation’s states lack extensive training programs for the facilities’ employees, with most requiring some form of a job orientation and less than a dozen hours of instruction.

When it comes to staffing, the differences are even more stark. Thirty-eight states leave the amount of personnel needed to care for residents up to individual facility owners.

These variations fuel the position that federal oversight is needed, mainly because it would provide consistency. But there are opponents of the idea who think it will make ALF oversight more bureaucratic and expensive. With Medicaid waivers covering the cost of ALFs in some situations, the argument for federal oversight gains strength. "But because Medicaid’s role is increasing in assisted living, advocates for the elderly say the U.S. Centers for Medicaid and Medicare Services, which oversees nursing homes, should also monitor assisted-living facilities."

The article discusses efforts at the state level of ensure quality of care and offers argument both in favor of and against involvement of the feds.

What do you think?

 

July 5, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 20, 2019

In-Depth Story on Reverse Morgages

USA Today, ran this story, Seniors were sold a risk-free retirement with reverse mortgages. Now they face foreclosure. This is not a happy story.

Alarming reports from federal investigators five years ago led the Department of Housing and Urban Development to initiate a series of changes to protect seniors. USA TODAY’s review of government foreclosure data found a generation of families fell through the cracks and continue to suffer from reverse mortgage loans written a decade ago.

These elderly homeowners were wooed into borrowing money through the special program by attractive sales pitches or a dire need for cash – or both. When they missed a paperwork deadline or fell behind on taxes or insurance, lenders moved swiftly to foreclose on the home. Those foreclosures wiped out hard-earned generational wealth built in the decades since the Fair Housing Act of 1968 1

  . . .        

Borrowers living near the poverty line in pockets of Chicago, Baltimore, Miami, Detroit, Philadelphia and Jacksonville, Florida, are among the hardest hit, according to a first-of-its-kind analysis of more than 1.3 million loan records. USA TODAY worked in partnership with with Grand Valley State University, with support from the McGraw Center for Business Journalism.

The article looks at some examples of individuals who are in trouble and examines the situation that led us to this point.

Federal regulators and industry leaders cautioned that numbers alone tell only part of the story, since many foreclosures result from the natural end of reverse mortgages: the homeowner’s death. The average term of a reverse mortgage is about seven years, and if a family member is not willing or able to repay the loan, lenders push the property through foreclosure.

Regulators said actual evictions of seniors are rare. There’s no way to verify that, though, since HUD, the top government regulator of Home Equity Conversion Mortgage 4 loans, does not sign off on evictions – or even count them.

The article is lengthy but full of important information. Read it yourself, and then assign it to your students.

Thanks to my colleague and dear friend, Professor Bauer, for sending me the article.

June 20, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing, Other, State Cases, Statistics | Permalink | Comments (0)

Friday, May 31, 2019

Check out the 2018 Profile of Older Americans

Yes, yes, we are almost half-way through 2019, but here is the 2018 Profile of Older Americans!   The Administration for Community Living (ACL) explains that "[t]he Profile of Older Americans is an annual summary of critical statistics related to the older population in the United States. Relying primarily on data offered by the U.S. Census Bureau, the Profile illustrates the shifting demographics of Americans age 65 and older. It includes key topic areas such as income, living arrangements, education, health, and caregiving. The 2018 Profile also incorporates a new special section on emergency and disaster preparedness." You can access the 20 page profile as a pdf here or access the data in a spreadsheet here.  You can also access the data for prior years from the landing page.

The highlights reveal some interesting stats, including

Older women outnumber older men at 28.3 million older women to 22.6 million older men.

In 2017, 23% of persons age 65 and over were members of racial or ethnic minority populations--9% were African-Americans (not Hispanic), 4% were Asian (not Hispanic), 0.5% were American Indian and Alaska Native (not Hispanic), 0.1% were Native Hawaiian/Pacific Islander (not Hispanic), and 0.8% of persons 65 and older identified themselves as being of two or more races. Persons of Hispanic origin (who may be of any race) represented 8% of the older population.

A larger percentage of older men are married as compared with older women---70% of men, 46% of women. In 2018, 32% older women were widows.

About 28% (14.3 million) of older persons lived alone (9.5 million women, 4.8 million men).

Among women age 75 and over, 44% lived alone.

Among adults age 75 and over, 42% report the television is their first source of emergency information as compared with 31% for the total population. The percentage of older adults receiving information from the internet (9%) is much lower than for the total population (31%).

May 31, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other, Statistics | Permalink | Comments (0)

Thursday, May 16, 2019

Needing LTC but Unable to Afford It

The New York Times ran an article recently that doesn't bode well for many elder Americans.  Many Americans Will Need Long-Term Care. Most Won't be Able to Afford It reviews what is referred to as

the middle-class bind ... [where the elder has t]oo much money to qualify for Medicaid or subsidized housing, but not enough to pay for long-term care, an industry that has primarily pursued the well-off. ...

A recent analysis in Health Affairs, pointedly titled “The Forgotten Middle,” investigated how many middle-income seniors will be caught in that bind. The numbers were grim.

Using data from the national Health and Retirement Study, including personal income and assets and health status, the researchers defined the middle-income cohort as Americans from the 41st to the 80th percentile in terms of financial resources....

In 2029, for people 75 to 84 (ages when they’re likely to need long-term care), that would mean access to about $25,000 to $74,000 a year in current dollars. Over age 85, the middle-income category extends to $95,000.

The projection is that two-thirds are going to need some type of long-term care, yet "more than half will be unable to pay assisted living fees and medical costs in 2029, the study found." Even those owning a home aren't as house-rich as they may think.  Plus this group has a lot of debt, and not that much in savings.

Consider this:

The United States, unlike many Western democracies, has never created a broad public program covering long-term care. Medicare pays for doctors, hospitals, drugs and short-term rehab after hospitalization — not for independent or assisted living.

That could change one day — imagine a new Medicare Part LTC — but “that will be incredibly difficult to achieve politically,” [said one expert].

Policy types instead suggest more incremental changes by both government and industry. Perhaps Medicaid could cover seniors with slightly higher incomes, or modify its regulations to include housing costs along with health care.

May 16, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicare | Permalink | Comments (0)

Wednesday, May 15, 2019

Maps of America Aging

Professor Naomi Cahn sent us the link to this recent article, 7 maps that tell the incredible story of aging in America. "Census projections show a major demographic shift already underway and accelerating in the years to come. ...At the same time, populations are not aging evenly, and issues related to aging will impact individual communities in vastly different ways, boosting economic opportunity in some areas while putting a strain on social services in others."

One way to sort out who will be most impacted by aging is to look at age demographics across the country and how they will change over time. Using data from the U.S. Census Bureau and its own updated demographics, spatial-analytics firm Esri put together for Fast Company an exclusive map series that examines the issue from a number of angles, including a district-by-district breakdown of the median age in 2010 and the projected median age in 2023. The result is a compelling visual record of both who we are right now and where we are heading–a temporal snapshot for the ages, so to speak.

 

There are links to maps on the following topics:

May 15, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other | Permalink | Comments (0)

Tuesday, May 14, 2019

California ALF Resident Evicted for Not Paying Rent

That headline may have elicited a shoulder shrug from you and a fleeting thought as to why I thought this was newsworthy enough to be the subject of a blog post.  So how about if I add some info for you?  What if the story's title is this? Medi-Cal recipient, 101, evicted from Santa Rosa assisted living facility for being unable to pay. This is a situation where the elder outlived her savings. As the story explains

[The resident] like most people, probably never thought she’d live to be 101, and she clearly did not expect to be paying nearly $7,000 a month to be living in a senior residential care facility.

The expense drained her of all the money she had after selling her modest home in Santa Rosa’s Holland Heights neighborhood in 2013. By November of last year, all [the resident] could afford to give ...  the assisted living facility, was her monthly Social Security check of about $1,300 — it wasn’t enough. ...

On April 18, [the resident], who suffers from dementia, was wheeled into Sonoma County eviction court on Cleveland Avenue. With her bank account drained, the former real estate agent was now receiving Medi-Cal, the state’s version of Medicaid health insurance, which the private-pay [ALF] le did not accept.

The story ultimately has an ending-a Medi-Cal bed was located for the resident. The story goes on to focus on the lack of beds in the area, the cost of long-term care, and the problem for folks like the elder in this story who outlives her savings.

Thanks to Julie Kitzmiller for alerting me to this story.

May 14, 2019 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Medicaid, State Cases | Permalink | Comments (0)

Friday, May 3, 2019

Unable to Afford Housing and Health Care

Kaiser Health News ran a sobering story last week. In 10 Years, Half Of Middle-Income Elders Won’t Be Able To Afford Housing, Medical Care reports on a recently published study by Health Affairs that concluded "In 10 years, more than half of middle-income Americans age 75 or older will not be able to afford to pay for yearly assisted living rent or medical expenses, according to a study published ...  in Health Affairs." Here is the abstract for the article, The Forgotten Middle: Many Middle-Income Seniors Will Have Insufficient Resources For Housing And Health Care.

As people age and require more assistance with daily living and health needs, a range of housing and care options is available. Over the past four decades the market for seniors housing and care—including assisted living and independent living communities—has greatly expanded to accommodate people with more complex needs. These settings provide housing in a community environment that often includes personal care assistance services. Unfortunately, these settings are often out of the financial reach of many of this country’s eight million middle-income seniors (those ages seventy-five and older). The private seniors housing industry has generally focused on higher-income people instead. We project that by 2029 there will be 14.4 million middle-income seniors, 60 percent of whom will have mobility limitations and 20 percent of whom will have high health care and functional needs. While many of these seniors will likely need the level of care provided in seniors housing, we project that 54 percent of seniors will not have sufficient financial resources to pay for it. This gap suggests a role for public policy and the private sector in meeting future long-term care and housing needs for middle-income seniors.

A pdf of the article is available here.

May 3, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Statistics | Permalink | Comments (0)

Monday, April 29, 2019

Pentagon Officials Point to Need for Elder Care at Guantanamo Bay

In January 2018, Donald Trump issued an order to keep the detention facility at Guantanamo open, with the potential for the Pentagon to add new prisoners. Following that decision, Pentagon officials, described in some accounts as being "unusually frank," discussed the need for long-term care facilities for aging prisoners who will grow old and frail.  From an article in The Military Times:

The Pentagon was investing in upgrades at the Navy base under President Barack Obama, whose push to shutter the detention center couldn’t overcome opposition in Congress. But those projects, including the $150 million barracks, were funded with the understanding that they could be used by the personnel of the Navy base that hosts the detention center. Now they are viewed as part of a broader effort to be able to operate the prison for many years to come.

 

“Now my mission is enduring,” said Adm. John Ring, commander of the task force that runs the jail. “So I have all sorts of structures that I have been neglecting or just getting by with that now I’ve got to replace.” . . . 

 

Officials say Camp 7 is in need of major repairs, with cracking walls and a sinking foundation, and it is not suitable to hold men who will likely be in custody for many years to come. The new unit, which would be known as Camp 8, would have cell doors wide enough for wheelchairs and hospice beds and communal areas so elderly prisoners could help each other as they grow old.

For more, read the June 2018 article, "U.S. Military Plans for Future at Guantanamo Because of Trump."

I drafted the above language for this post on Sunday, April 28, after reading a more recent, more detailed story in another publication, Defense One, titled "Guantanamo Is Becoming A Nursing Home for its Aging Terror Suspects."  

From that article we hear again from Admiral John Ring, the commander in charge of the Guantanamo Task Force:

The aging population at Gitmo poses unique challenges for Adm. John Ring, the latest in a string of officers who have led the prison on one-year deployments. Defense attorneys say many detainees suffer the ill effects of brutal interrogation tactics now considered to be torture. The United States has committed to providing the same health care to the remaining detainees that it provides to its own troops, as required by the Geneva Conventions. But the secure medical facilities built to treat the detainees — Ring calls them “guests” — can’t cope with every kind of surgery geriatric patients typically need, and weren’t built to last forever. Congress has prohibited the transfer of detainees to the continental United States, which means any treatment they receive will have to take place at a remote outpost on the tip of Cuba.

 

“I’m sort of caught between a rock and a hard place,” Ring said. “The Geneva Conventions’ Article III, that says that I have to give the detainees equivalent medical care that I would give to a trooper. But if a trooper got sick, I’d send him home to the United States.

So, it was with interest that I read a third new story, on Monday morning, April 29, reporting that Admiral Ring has been discharged from his post, with the briefest of explanation, "loss of confidence in his ability."  See  The New York Times article: Guantanamo Bay Prison Commander Has Been Fired

April 29, 2019 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Sunday, April 28, 2019

PA Supreme Court's Choice of Law Ruling Obligates New Jersey Family Members to Provide Filial Support For Disabled Adult Son In Pennsylvania

In what appears likely to be the final chapter in a long-running "reverse" filial support case in Pennsylvania, a unanimous Pennsylvania Supreme Court ruled on April 26, 2019 that Pennsylvania statutory law applies to determine the liability of older New Jersey parents on the issue of whether they must pay for the long-term care costs for their son in a private institution in Pennsylvania.  New Jersey law, unlike Pennsylvania law, expressly exempts any person "55 years of age or over" from a support obligation for an adult child.  

I've been following the case of Melmark v. Schutt since at least 2016, and you can review some of the history of the case here, here and here.  Until this ruling, the parents had successfully argued that New Jersey's law controlled the case.   From the Supreme Court's opening footnote, however, where it outlined evidence of the parent's annual income, it was apparent the Court was outraged that parents who could be characterized as wealthy could refuse to pay a nonprofit care provider.  The Court ruled that there was a "true conflict" between the laws of New Jersey and Pennsylvania, and recognized that while many factors such as the domicile of the parents and the stipulated 'residency" of the son  pointed to the application of New Jersey law, the most significant contact factor was the "harm" of nonpayment, occuring in Pennsylvania.  The Court concluded:

"[A]lthough New Jersey's welfare laws apparently provide for Alex's support at public expense, there is no reason to suppose that New Jersey has adopted a public policy favoring imposition of the ongoing cost of care for indigent adults on an unwilling private third party [i.e., Melmark].... [T]he exemption in New Jersey's statutory support law for parents over 55 years of age cannot justifiably override Pennsylvania's governing statute -- at least for the period between April 1, 2012 to May 1, 2013 -- so that the financial burden of Alex's care falls upon Melmark." 

I have long thought the case has uniquely "tough facts," and Pennsylvania has a history of using Pennsylvania's law to obligate families to cover certain costs of care for indigent family members.  Further, the Court also ruled that the institution had a viable related theory of recovery under Pennsylvania common law, sounding in quantum meruit or unjust enrichment.  

The opinion has potential implications for cross border claims of filial support in the more typical Pennsylvania fact pattern, where adult children are asked to pay the costs of care for an aging parent who fails to qualify for Medicaid.   E.g., Health Care & Retirement Corp. of America v. Pittas.  I can see the potential for out-of-state children to be subject to a claim for reimbursement, especially if they have any role in choosing a Pennsylvania facility where Medicaid is unavailable to pay, facts that might also give the Pennsylvania court personal jurisdiction over the out-of-state children. 

April 28, 2019 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, April 24, 2019

Elder Suicides on Rise in Long-Term Care Housing?

Kaiser Health News published a story that was the work of Kaiser and PBS NewsHour jointly. Lethal Plans: When Seniors Turn To Suicide In Long-Term Care. Their "six-month investigation ...  finds that older Americans are quietly killing themselves in nursing homes, assisted living centers and adult care homes."... "Poor documentation makes it difficult to tell exactly how often such deaths occur. But a KHN analysis of new data from the University of Michigan suggests that hundreds of suicides by older adults each year — nearly one per day — are related to long-term care. Thousands more people may be at risk in those settings, where up to a third of residents report suicidal thoughts, research shows."

The article acknowledges that "[t]racking suicides in long-term care is difficult. No federal regulations require reporting of such deaths and most states either don’t count — or won’t divulge — how many people end their own lives in those settings."   The article includes comments from those in the industry that points out the amount of regulation of facilities by CMS and the facilities' supervision of their residents.  The article provides some general examples as well as specifics. The article is hard to read when you get to those examples, but this is a very important topic.  The article also discusses and distinguishes rational suicide. The article concludes with a discussion of interventions.

April 24, 2019 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other | Permalink | Comments (0)

Friday, March 15, 2019

College Students Living In Elder Living Communities

AARP's Livable Communities newsletter had 2 articles of interest regarding housing and elders.  The first, Rethinking Student Housing focuses on several projects  along the lines of an artist-in-residence program, where music students get free housing in an elder housing community in return for performances as well as "helping with errands and socializing with ...  neighbors."  The second article, Rethinking What Makes a Great Roommate, focuses on a project that melds two issues: lack of affordable housing and elders who want to stay in their homes but need income. This project,  "Nesterly, a website that connects older people who have rooms to spare with young and lower income people seeking medium-term affordable housing. "Homeshare with another generation: The easy, safe way to rent a room," states the site's homepage. "  There is a small fee to use the service, which checks out the potential renters.  The two parties come to agreement on the terms and price.

Two very creative ideas!

March 15, 2019 in Consumer Information, Current Affairs, Housing, Music, Other | Permalink | Comments (0)

Wednesday, December 19, 2018

For Nursing Homes Trapped in A Cycle of Failure -- What Solutions Are Available?

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.  

December 19, 2018 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)

Monday, December 10, 2018

Thinking about New York Time's Article on Guardianships and One Woman's Personal Story

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

Several Items Relating to Nursing Homes & Quality of Care

I have collected four  items regarding nursing homes, that  I thought I'd summarize in one  post.

First

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."

Second

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."

Third

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."

Fourth,

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."

December 5, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations | Permalink

Tuesday, December 4, 2018

SNF Silver Tsunami Hitting Texas?

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.....

December 4, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Thursday, November 1, 2018

Disaster Recovery Resources

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.

The Disaster Relief & Consumer Protection Project  offers information and resources in several categories. For individuals who are older, the resources address the following:

November 1, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink

Monday, October 29, 2018

Law Students Attend Annual Meetings for LeadingAge and NaCCRA

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  Dickinson Law Student Mark Lingousky and Parker Life CEO Roberto Muniz 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

Good Life in Later Years

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.

Good stuff!

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

New Report: ALF Promising Practices

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!

October 25, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 24, 2018

Sign of the Times: CLE on Long Term Care Planning for Blended (and not so blended) Families

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
        • Marriage
        • Divorce
        • 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)