Friday, December 20, 2019
Frequent readers of this blog know that this semester I had my students write posts about their observations on recent events. The semester has ended and I have a final post from a student to share with you.
Jeidy Beltran writes about aging in place.
THE COST OF AGING IN PLACE
Kaiser Health News recently published the article “For Boomers Reframing Aging, Age-Proofing A Home Won’t Come Cheap,” discussing the high investments older persons are incurring when retrofitting their homes to be able to “age in place.” According to the article, “by 2050, almost one-quarter of Americans will be 65 or older,” and what living arrangements and services will be available to them is the million-dollar question. Most of the common options are moving in with relatives or moving to a care facility. The article states that baby boomers are not attracted to either of those options and it is quite understandable why – they want to preserve their autonomy and independence. Nevertheless, many are left without an option given that aging in place and preserving the highest amount of independence can be considered a luxury and available to those who are most affluent.
According to Kaiser, “in a recent survey of 1,000 people age 65 and older, 80% of respondents were concerned about their ability to age in place due to financial reasons. About 60% said that they have less than $10,000 in savings (including investments and retirement plans).” Given that in this day in age, neither communities or homes are suited for “aging in place,” accomplishing it can present quite a hurdle. Most communities are not people focused, meaning that they do not have the necessities within walking distance. Also, most homes are either not single-story or they do not have the necessary modifications to allow one to age in place (narrow doors and hallways, low toilet seats, bathtubs rather than walk in showers with grab bars…etc.). Given that everyone has a different view of what aging in place signifies, retrofitting a home and when it is done can vary. Some may start looking into their forever home from the time they purchase their first home or by the time they start planning for retirement and possible disability, while others undertake the task when presented with a disability that requires such modifications. Home modifications can also vary in degree. They can be as little and inexpensive as “adding grab bars or lever doorknobs” to highly expensive changes such as “widening doorways or lowering light switches.” The article commented on a couple in Texas who undertook the task of completely modifying their home and including all that might be necessary in case they might need it in the future, which could easily cost them $300,000 just for renovations.
My initial concern with aging in place was that people would deplete their funds in achieving their “dream” and aging in place appropriate home, but would fail to account for the future need of services. After reading the article and seeing that some people build their home with the expectation that a caregiver might live in the home makes me think that some people are thinking of the possibility that they might need services after all. The choice between wanting to preserve as much independence as possible, requiring services, and the financial burdens of each is a hefty one, but I believe that if properly planned, aging does not have to be so complicated. Have you thought about this? If so, have you analyzed your situation and weighed the pros and cons of each of the housing options?
Thursday, December 19, 2019
The Area Agency on Aging for Pinellas-Pasco (Florida) along with the Pinellas Community Foundation did a Community Assessment Survey of Older Adults (CASOA):
The Community Assessment Survey of Older Adults, or CASOA, is a printed survey that was sent to 10,000 randomly selected households across every Pinellas and Pasco zip code in which at least one resident was known to be aged 60 and over. The Pinellas Community Foundation and the Area Agency on Aging of Pasco-Pinellas joined forces to conduct this comprehensive needs assessment of the area’s aging community.
The survey, which is available here offers key findings in 9 categories:
Overall Community explores how older residents view the community overall, how connected they feel to the community and overall feelings of safety, as well as how likely residents areto recommend and remain in the community.
. . .
Health and Wellness Of all the attributes of aging, health poses the greatest risk and the biggest opportunity for communities to ensure the independence and contributions of their aging populations. Health and wellness, for the purposes of this study, included not only physical and mental health, but issues of independent living and health care.
. . .
Housing The movement in America towards designing more “livable” communities –those with mixed-use neighborhoods, higher-density development, increased connections, shared community spaces and more human-scale design –will become a necessity for communities to age successfully.
. . .
Outdoor Spaces and Building Generally, communities that have planned for older adults tend to emphasize access --access to parks, green spaces, buildings, and places where the public wants to gather. Accessibility of public places in a community has a major effect on older residents’ quality of life, allowing them to remain mobile, access services, participate in productive activities and engage socially.
. . .
Transportation and Streets Mobility access increases the likelihood that seniors will be engaged with the community and the economy. Because the US is currently highly reliant on automobiles, older drivers may become concerned with their dependency on others for transportation because they can become isolated without their motorized mobility. Those that reside in livable communities where they can reach their destinations easily and comfortably on foot or in public transportation are more likely to remain engaged in their communities and to demonstrate signs of successful aging.
. . .
Social Participation, Inclusion and Education Opportunities. A “community” is often greater than the sum of its parts, and having a sense of community entails not only a sense of membership and belonging, but also feelings of emotional and physical safety, trust in the other members of the community and a shared history.
. . .
Volunteer and Civic Engagement Productivity is the touchstone of a thriving old age. This section of the report examines the extent of older adults’ engagement in the Pasco-Pinellascommunity as determined by their time spent attending or viewing civic meetings, volunteering or providing help to others.
. . .
Job Opportunities People in the U.S. are working longer and retiring at an older age than they did 20 years ago. Of all developed countries, the U.S. has the highest labor force participationof adults age 65 and older. Older adults are postponing retirement for a variety of reasons: improved health, to benefit from delayed pension plans, to accumulate additional wealth, and because the knowledge worker economy is less physically demanding than jobs in the economy of 20 years ago. Some experts believe that older workers will become an untapped resource for economic stability when Baby Boomers begin retiring.
. . .
Community Information Sometimes residents of any age fail to take advantage of services offered by a community just because they are not aware of the opportunities. The educationof a large community of older adults is not simple, but when more residents are made aware of attractive, useful and well-designed programs, increasing numbers of residents will benefit from becoming participants.
. . .
The summary of the results are available here.
Tuesday, December 10, 2019
I was in Missouri last week for a couple of days and had a chance to visit with some great people. First, I had the privilege to meet Dr. Erin Robinson and Dr. Clark Peters from the School of Social Work at Mizzou. The work they are doing in gerontological social work is quite interesting. At some point our conversation segued into the role of technology in caregiving for older adults, and Dr. Robinson shared with me the research and activities of the Mizzou Center for Eldercare & Rehabilitation Technology, whose "mission is to create technology for proactive healthcare that helps older adults and people of all ages and needs to lead healthier, more independent lives." We also talked about the University's foray into housing for elders, known as TigerPlace. which is a partnership between Americare and the Mizzou Sinclair School of Nursing.
On Friday, I attended day two of the winter symposium of the Missouri Chapter of NAELA (MoNAELA), The two day program had a robust agenda of general sessions and two tracks, advanced and basics. These folks are a great bunch of people who are quite knowledgeable and caring.
Wednesday, December 4, 2019
Here's an interesting question: The Silver Tsunami: Which Areas will be Flooded with Homes once Boomers Start Leaving Them? It's a good question; an important one. Here are some highlights from the article:
- Over the next 20 years, more than a quarter (27.4 percent) of the nation’s currently owner-occupied homes are likely to hit the market as their current owners pass away or otherwise vacate their homes.
- Places likely to be most impacted by this upcoming Silver Tsunami include both retirement hubs (Miami, Orlando, Tampa and Tucson) and regions where young residents have left (Cleveland, Dayton, Knoxville and Pittsburgh). The impact of the Silver Tsunami is also likely to vary greatly across different areas within metros.
- The places likely to be least impacted include those with vibrant economies featuring fast growth and affordable housing that act as magnets for younger residents (Atlanta, Austin, Dallas and Houston).
- Housing released by the Silver Tsunami will provide a substantial and sustained boost to housing supply, comparable in magnitude to the fluctuations that new home construction experienced in the 2000s boom-bust cycle.
- It seems likely that, in the coming two decades, the construction industry will need to place a greater focus on updating existing properties, in addition to simply building new homes.
The article suggests we look for this tsunami to "hit" between 2020-2030. Where will it hit the hardest?
The Silver Tsunami will strike nationwide, impacting between one-fifth and one-third of the current owner-occupied housing stock in every metro analyzed.
Well-known retirement destinations, including Miami, Orlando, Tampa and Tucson, will experience the most housing turnover in the wake of the Silver Tsunami. If the number of future retirees choosing to make these places home during their golden years fails to match generations past and local housing demand fades, these areas may end up with excess housing.
The article contains important statistics ranking areas most and least likely to be affected. The article also discusses a ray of sunshine within this tsunami-the housing turnover is likely to serve as a substitute for new construction.
Get your tsunami preparedness kit together---you've been warned :-)
Thanks to Professor Mark Bauer for sending me the article.
Tuesday, October 22, 2019
On Monday, I participated in a panel discussion of aging services in Pennsylvania, at the invitation of Professor Patricia Aguilera-Hermida, who is on the faculty of Human Services and Family Studies at Penn State Harrisburg. Even though I knew most of the panelists -- all experienced professionals from Pennsylvania's Department of Aging -- the occasion gave me new insight and respect for the role of advocacy on behalf of older adults. The students were attentive and asked great questions, and I suspect some of them saved their best questions for the one-on-one time with the speakers.
Robert Torres, the Secretary of Aging in Pennsylvania reminded us that our state has a uniquely strong, dedicated funding system to advocate for older adults through the Pennsylvania Lottery. About 80% of the department's operations and outreach budget is funded by this source. As anyone who has worked in state or federal government would know, the "fight" for adequate funding for operations can be intense, and in many states older adults would not have a strong position in the queue for necessary dollars.
The breadth of programming outlined by the panelists is impressive. For example, Christine Miccio, Director of the Bureau of Aging Services described in detail the OPTIONS program that provides direct support for more than 55,000 older adults who are still in their homes. Pennsylvania also has more than 500 publicly supported Senior Centers -- a way to reach additional people with meals, health care information, activities and social programs. Margaret Barajas, a dynamo who is the Statewide Long-Term Care Ombudsman, explained how a system of volunteer and paid advocates investigate and coordinate responses to concerns about senior living-based needs, including concerns about quality of services in nursing homes and assisted living facilities. Denise Getgen, as director of the Older Adult Protective Services Office, described the ever growing need for investigation of complaints about elder abuse, neglect and exploitation. In recent years, the number of complaints received and investigated by the state has grown to over 40,000 allegations per year, with the majority of concerns focusing on self-neglect for persons in isolated circumstances. I've worked with several of these units directly over the years, especially when I was head of my Law School's Elder Protection Clinic. Pennsylvania's Area Agencies on Aging continue to fund and coordinate certain free legal services for seniors in need in each county throughout the state.
One student asked about whether services from the Department are limited to "citizens" of the United States -- and it was impressive to hear the long list of services that are NOT restricted by citizenship. Another student tossed a "softball" question -- "what is your favorite program?" -- and Christine Miccio hit it out of the park by describing the success of a new pilot program in rural Pennsylvania that matches up older adults who need housing or assistance -- with those who can provide housing or assistance. She joked that she is now the eHarmony of housing matches, especially as the original pilot program is extending to several additional counties.
My thanks to Professor Aguilera-Hermida for hosting this noon-time chat with so many students who are considering a wide range of aging services as part of their career goals. One enterprising student explained to me that her interest in the field of gerontology at medical school was sparked when she found affordable housing as a student in a well-known, nearby nursing home that had "extra" space.
Tuesday, October 15, 2019
The Tampa Bay Times ran an article a few days ago that raises some important issues. Florida’s assisted living facilities write rules on reporting deaths, injuries . explains the current reporting requirements when a resident is injured and the proposed change to the requirement.
When a resident in one of Florida’s assisted living facilities falls, dies or is seriously injured, that facility is required to tell the state within one business day that something has gone wrong. But a bill before lawmakers would give operators weeks to report such critical incidents — potentially leaving residents in harm’s way, elder advocates warn.
Industry groups for assisted living facilities, which crafted much of the bill’s language and handed it to lawmakers, say the one-day reports are not needed, and eliminating them will reduce onerous paperwork and unnecessary administrative fines.
Hang on for a second and think about this. There must be a reason for the current requirement... and advocates say it's because they "are necessary to inform state regulators quickly of potential incidents, and that the change is part of a decades-long deregulation of the industry that could put residents at greater risk."
The section on adverse incidents involves one of the key methods for alerting regulators when something goes wrong. Currently, an initial report must be filed if a resident dies, sustains serious injuries, goes missing or is transferred to a hospital or other facility for more intensive care — and facility administrators think they may be responsible.
Assisted living facilities are required by statute to submit up to two reports: one within one business day after an incident, and another full report within 15 days if the facility determines it is responsible. When a report is filed, the Agency for Health Care Administration can then use it to initiate an investigation if it raises concerns about resident safety.
The proposal requires just 1 report that is filed by 15 days, when the facility makes the decision that " the incident happened in the scope of its care, though it would direct the facility to begin investigating the incident within 24 hours" the article reports. The article indicates that the bill was brought by the Florida Senior Living Association, and is supported by AHCA. Advocates for residents take the opposing few-that is more regulation rather than less. The bill's sponsor in the Florida Senate is quoted as saying "the legislation [is] a “modernization” bill that would primarily update language in the statute, and allow residents to use devices to move around more easily or prevent falls.... [and that] the language to reduce the number of adverse incident reports was meant to bring assisted living facilities in line with a recent change made to reduce those reports for nursing homes, and “to make sure the language would be as similar as possible." Although the Senator has spoken primary with the industry folks, she plans to talk to resident groups too, the article reports.
Read the bill and follow it. If you live in Florida, let your elected representative know your position on this. If you live in another state, pay attention anyway. The revisions could be proposed in other states as well.
Monday, October 7, 2019
The article opening with anecdotes involving patients at a Denver hospital,
In the first half of this year alone, the hospital treated more than 100 long-term patients. All had a medical issue that led to their initial hospitalization. But none of the patients had a medical reason for remaining in the hospital for most of their stay.
Legally and morally, hospitals cannot discharge patients if they have no safe place to go. So patients who are homeless, frail or live alone, or have unstable housing, can occupy hospital beds for weeks or months — long after their acute medical problem is resolved. For hospitals, it means losing money because a patient lingering in a bed without medical problems doesn’t generate much, if any, income. Meanwhile, acutely ill patients may wait days in the ER to be moved to a floor because a hospital’s beds are full.
What's a hospital to do? In some cases, provide or pay for housing for those patients. According to the article, a number of hospitals are "exploring ways to help patients find a home. With recent federal policy changes that encourage hospitals to allocate charity dollars for housing, many hospitals realize it’s cheaper to provide a month of housing than to keep patients for a single night." Think about that statement again.... one month of housing may be cheaper than one night's hospital stay.
So the Denver hospital featured in the story is taking this a step farther, "partnering with the Denver Housing Authority to repurpose a mothballed building on the hospital campus into affordable senior housing, including about 15 apartments designated to help homeless patients transition out of the hospital."
Examine these numbers: One night in the hospital featured in the story "costs ... "$2,700 a night [and] ..... [p]atients who are prime candidates for the transitional units stay on average 73 days, for a total cost to the hospital of nearly $200,000. The hospital estimates it would cost a fraction of that, about $10,000, to house a patient for a year instead."
The KHN article references a recent report from the Urban Institute on the correlation between health and housing. Fascinating info!
Thursday, September 12, 2019
The New York Times ran an article about, At Colleges, What's Old is New: Retirees Living on Campus.
This story focuses on "a growing number of colleges sponsoring retirement communities on campus or thinking about it." The schools promote the educational impact of this, but of course there can be a monetary benefit to the college.
The schools say their motive is more educational and social — encouraging intergenerational mixing — than financial. But the communities promise a new revenue stream for institutions that are coping with reduced state operating support and declining college enrollment in many parts of the country. They are bringing a new generation (or old generation) to c ampus to fill classes, eat in dining halls, attend student performances and become mentors.
Not everyone supports the concept, with concerns about older people complaining about noise from parties, and the recognition that their presence in the classroom can change the dynamics, without the same stakes, since only the younger people take the classes for grades. But that's not guaranteed to happen and in fact, the opposite may occur. One couple quoted for the article "say the whole reason they are moving to ... College and not to Miami is that they like to stay up late and party. [They] believe that the other residents will be the same — not your parents’ grandparents. “They’re forward thinkers, not the ones to go down to Florida and order the early bird special...."
The article features several colleges that are implementing the concept. The cost may be too steep for some. There are different approaches being adopted. It all is very interesting.
Check it out!
Sunday, September 8, 2019
With Dorian finally moving on, I thought it would be good for all of us to post something that was happy. So Kiplinger ran an article, 10 of the Happiest Places to Retire in the U.S. According to the article, these "10 retirement destinations rank the highest in terms of the overall well-being of residents." These are Charlottesville, VA; Ann Arbor, MI: Portland, ME;Carlsbad, CA; Durham-Chapel Hill, NC; Cape Coral, FL; Richland, WA;; Provo, UT; Charleston, S.C.; and Burlington, VT. Not having lived in these, I can't comment on if they are happy places to live.
To come up with the rankings, Kiplinger relied on the "Well-Being index" which the article explains " is based specifically on residents' feelings about five elements of well-being: "purpose" (liking what you do and being motivated to achieve goals), "social" (having supportive relationships and love), "financial" (managing your budget to feel secure), "community" (liking where you live) and "physical" (being in good health). " Using this index, then Kiplinger "factored in the "community" and "physical" components of the Well-Being Index, where available, as well as living costs, safety, median incomes and poverty rates for retirement-age residents and the availability of recreational and health care facilities."
The article is available here.
Wednesday, September 4, 2019
My colleague and dear friend Professor Bauer, sent me the link to a recent op-ed in the New York Times, How Not to Grow Old in America.The assisted living industry is booming, by tapping into the fantasy that we can all be self-sufficient until we die.
Assisted living seems like the solution to everyone’s worries about old age. It’s built on the dream that we can grow old while being self-reliant and live that way until we die. That all you need is a tiny bit of help. That you would never want to be warehoused in a nursing home with round-the-clock caregivers. This is a powerful concept in a country built on independence and self-reliance.
The problem is that for most of us, it’s a lie. And we are all complicit in keeping this dream alive.
The author notes that the ALF industry has a financial incentive to market their product and it's appealing to the kids of those who reside in ALFs. The author writes, "[t]he irony of assisted living is, it’s great if you don’t need too much assistance. If you don’t, the social life, the spalike facilities, the myriad activities and the extensive menus might make assisted living the right choice. But if you have trouble walking or using the bathroom, or have dementia and sometimes wander off, assisting living facilities aren’t the answer, no matter how desperately we wish they were." Further, the author offers data that most of these residents need more care than that provided and argues in favor of regulation, using several actual cases as illustrations to support the call for regulation.
We need to let go of the ideal of being self-sufficient until death. Just as we don’t demand that our toddlers be self-reliant, Americans need to allow the reality of ourselves as dependent in our old age to percolate into our psyches and our nation’s social policies. Unless we face up to the reality of the needs of our aging population, the longevity we as a society have gained is going to be lived out miserably.
September 4, 2019 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, Retirement, State Statutes/Regulations | Permalink | Comments (1)
Friday, August 30, 2019
A local news station recently ran an article about the impact of a broken elevator on the residents who live on top floors in 8 On Your Side gets results for seniors in building with broken elevator. Knowing my colleague and dear friend, Professor Bauer, had written an article on 55+ housing that included a discussion of accessibility issues, I asked him if he'd write a guest post for us on this topic. Here it is:
Would You Please Just Fix It?
Mark D. Bauer
Stetson University College of Law
A recent news story in Tampa Bay reported that the single elevator in a mid-rise apartment building stopped working in late May and would not be repaired until October. That alone is surprising and seems wrong. But what makes this story particularly shocking is it occurred in an age 62 and older HUD subsidized building. Even more shocking: there are no federal laws regulating elevator repairs in federally managed or sponsored elder housing.
The story was made for television. A local news station interviewed numerous tenants with disabilities incapable of walking down staircases. One elder tenant interviewed said she had not been able to leave her home in two months and she found it very depressing. I have little doubt that most anyone would feel the same way.
The good news is that by airing this story and providing publicity to the tenants, the company managing the apartment complex arranged for free hotel rooms for any resident desiring one. The elevator still will not be repaired until October because a part needs to be manufactured abroad. But at least the elder tenants now have an alternative to remaining prisoners in their own homes.
The bad news is that while this particular situation may be extreme, elder residents of multi-story apartment buildings are often trapped in their homes with little warning and no real alternative. The fact that most elevator repairs take less than six months is little comfort.
Department of Housing and Urban Development regulations require only the most basic life safety features in elder housing, such as smoke detectors. Most state and local laws covering elevators require that they be inspected and remain in good repair. It is always hard to search for the absence of a law or a case, but I have found nothing in the United States that regulates how long a repair may take. Unfortunately, I suspect the answer is “as long as needed.”
I did find one relevant case in Indiana where residents of elder housing suffered without elevators for over a month and then sued. On procedural grounds, the federal court held that the residents might have a viable argument under the Americans with Disabilities Act but could not sue under traditional landlord-tenant law (here the residents claimed that the broken elevator “constructively evicted” them). And as you might imagine, once the judge opened the door just a crack for possible litigation, the owners of the elder housing complex immediately fixed the elevator and settled with the residents.
It is ironic that the government sponsors or subsidizes elder housing without ensuring the physical safety of the residents, particularly when private entities often profit through participation in these programs. In researching this issue, a simple Google search produced literally hundreds of news stories about elders all over the country being trapped in multi-story buildings during lengthy elevator repairs. Like the situation here in Tampa Bay, the elevators were often repaired quickly after a local news story.
Even elevators in good repair cannot function without electricity. After many elders were killed or injured in Florida after a major hurricane in 2005 made their apartments inaccessible, a state law was passed requiring all 55 and older housing to add emergency generators for elevators. The real estate lobby was particularly effective here and got the state legislature to repeal the law a short time later.
Subsidized or government-owned congregate housing for elders is aging; few units have been added since the 1980s, and certainly not enough to replace housing demolished or converted to other uses. Five elevator companies remain after industry consolidation, and only one is located in the United States. It is no surprise then that elevators installed in the last century are difficult to repair. Cities and counties with large elder populations often spend extraordinary amounts of money responding to emergency calls requiring firefighters to carry elders down staircases.
It is easy to ignore a problem like stranded elders in high-rises because any single building has these problems infrequently, and with no publicity. But nationally we are putting lives in danger and wasting precious public funds by ignoring the problem. Currently it is very unlikely that HUD will take any corrective action. But in the long-run, it would be much cheaper to plan for broken elevators by requiring elder communities to provide for temporary accessible housing, or coordinate services necessary for daily living, or require emergency generators in mid- or high-rise buildings with only one elevator.
Professor Bauer's law review article on 55+ housing is available here. Thanks Professor Bauer!
Thursday, August 22, 2019
I suspect every elder law attorney has experienced the Friday Syndrome, where an individual calls the office to seek an emergency appointment because he or she has flown in to visit parents and has discovered new chaos. Perhaps it is a parent who is much more ill than anyone was letting on during phone calls. Perhaps it is discovering a huge pile of unpaid bills with no explanation for why they are overdue. Perhaps it is because the parents have said -- finally -- we need to make a decision and we want to make it today.
There are many variations on the Friday Syndrome, and frequently they involve a common human trait, procrastination, or as my fifth grade teacher called it, "The Scarlett O'Hara Syndrome." I didn't understand what she meant at the time, having not yet seen Gone with the Wind with Scarlett's classic last line, "After all, tomorrow is another day." But I did eventually figure out that my teacher was referring, in less than favorable terms, to my personal approach to homework assignments!
A friend who I often run into during early morning swims, attorney and financial planning advisor Alvin Blitz, shared with me a variation on the theme with his recent column on "Taking Control of Your Destiny." He recounts lessons from his 20 years of travel on behalf of Masonic Villages, as he works with individuals and couples who are thinking about a move to a continuing care retirement community (CCRC). He starts with the premise that while change is a difficult word to swallow, "resisting change usually results in a bad outcome." He describes two scenarios involving couples facing decisions about whether to stay in their own homes.
In the successful scenario, the couple began their reckoning with age while still in their early 70s, making a preliminary decision to downsize and live in a townhouse in a 55 plus retirement community, spending many years enjoying their neighbors and participating in activities geared to their stage in life. "As time went on, the husband was diagnosed with dementia, which required them to make another hard decision," reports Alvin. Eventually they decided that they needed a place where the husband's mental status could be accommodated and the wife would be able to stay active and supported in her new roles with her husband. In the CCRC, they were able to enjoy a "balance of independence and quality of life together while their health problems are addressed, without needing to rely on other individuals to make life decisions for them."
In the less successful scenario, the couple tried to stick in out in their 1950's castle. "Finally, the inevitable happened. the husband had a debilitating stroke. Family members from afar rallied to help, but time took its toll. The wife had medical problems and landed in the hospital. Decisions on care and where to live became limited and were thrust upon them by their circumstances."
Alvin reminds us that making affirmative decisions about housing and care as you age can lead to a much "softer landing" than an alternative that depends on happenstance. He also explains, helpfully, what it might mean to live in a CCRC where there is a clear mission, such as the fraternal mission at Masonic Villages where members of the Masonic organizations (including Eastern Star) can receive continuing compassionate care, even if the individual no longer has assets to pay for care.
For more, read Alvin Blitz' August 2019 article, Taking Control of Your Destiny, from his newsletter, appropriately called "The Blitz."
Monday, July 29, 2019
CMS issued their final rule on the use of pre-dispute arbitration clauses in nursing home contracts, CMS Rules Put Patients First Updating Requirements for Arbitration Agreements and New Regulations That Put Patients Over Paperwork.
The rule, published in 84 Fed. Reg. 34718 on July 16, 2019, amends 42 C.F.R. 483.70(n):
483.70 Administration. * * * * * (n) Binding arbitration agreements. If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section. (1) The facility must not require any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility and must explicitly inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care at, the facility. (2) The facility must ensure that: (i) The agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands; (ii) The resident or his or her representative acknowledges that he or she understands the agreement;(iii) The agreement provides for the selection of a neutral arbitrator agreed upon by both parties; and (iv) The agreement provides for the selection of a venue that is convenient to both parties. (3) The agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it. (4) The agreement must explicitly state that neither the resident nor his or her representative is required to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility. (5) The agreement may not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with § 483.10(k). (6) When the facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years after the resolution of that dispute on and be available for inspection upon request by CMS or its designee. * * *
and is effective September 16, 2019. The ABA Commission on Law & Aging published an article about the changes: Our New Nursing Home Arbitration Mandate: Educate, Educate, Educate
The recent rule by the Centers for Medicare and Medicaid Advocacy (CMS) permitting nursing homes to enter into pre-dispute, binding agreements with residents or their representatives was deeply disappointing to resident advocacy groups, including the ABA and its Commission on Law and Aging, which advocated strongly for a full ban on nursing home arbitration agreements.
Like many groups, we do not believe that the time of admission to a nursing home is appropriate for informed decision-making about such agreements. Nursing home admission is usually a time of crisis for individuals and their families; the resident is in an impaired condition, the choice of nursing homes may be severely limited, and the resident and family have no idea of the kind of dispute that might be bound by an arbitration clause in the future. There are advantages and disadvantages to arbitration, but it is only after a dispute arises that those pros and cons can be fully weighed, and an informed and voluntary decision can be made.
The author of the article, Charles Sabatino, executive director of the Commission, describes the role of elder law attorneys as "educate residents, their families, and the public more emphatically about these agreements and advise them not to sign these at admission or at any time before a dispute arises." He notes the good part of the change in the rule: "its mandate that arbitration agreements must not be used as a condition of admission to, or as a requirement for, a resident to continue to receive care at the facility. Moreover, the facility must explicitly inform residents or their representatives of the right to not sign the agreement as a condition of admission, or as a requirement, to continue to receive care at the facility. And the arbitration agreement itself must expressly state the same."
What is important about the new rule? Several things, according to Mr. Sabatino, including the ban on agreeing to arbitration as a condition of admission, a 30 day right of rescission, the requirement that the facility explain the contract in a way that is understandable to the resident or representative, and that the contract can't "contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman."
So, stay tuned.... let's see how this works.
Friday, July 26, 2019
The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19. One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law. This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices. She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships. That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships. As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court. I'll write more about these issues and my project soon.
I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania. Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania. In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities. The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times.
Points of strongest interaction included issues surrounding an individual or couple's assets. CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents. Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission. One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from the administrators of the CCRC. A similar question arose in connection with "refundable" entrance fees. In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years. We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods. I can see another article in my future on these topics.
July 26, 2019 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, July 5, 2019
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?
Thursday, June 20, 2019
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.
Friday, May 31, 2019
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.
Thursday, May 16, 2019
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.
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.
Wednesday, May 15, 2019
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:
Tuesday, May 14, 2019
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.