Elder Law Prof Blog

Case Western Reserve Hosts Law-Med Conference on Diminished Capacity and the Law

Law and Bioethics Professor Sharona Hoffman, Co-Director of the Law-Medicine Center at Case Western Reserve University organized a terrific symposium on Cognitive Decline and the Law, held on March 1, 2024.  Thank you, Sharona, for inviting me to participate!   

In my talk, I  suggested that the time has come for clearer thinking on a long-standing legal standard, known in many jurisdictions as the "Lucid Moment" or the "Lucid Interval Doctrine," that has permitted attorneys' testimony on clients' orientation in time, place and person to suffice as evidence of sufficient capacity in legal transactions, even in the face of expert medical testimony about Alzheimer's Disease or other advanced dementias. Research demonstrates that Canadian academics have been  questioning reliance on "lucid intervals in dementia" as early as 2015.  My additional thanks to Penn State Dickinson Law student and research assistant extraordinaire, Noah Yeagley, for joining us at the conference and who was especially enjoying this conference opportunity to revisit his pre-law school graduate work in neuroscience.

The day began with a keynote presentation by Dr. Carol Barnes, University of Arizona, addressing "Brain Mechanisms Responsible for Cognitive Decline in Aging."  One key takeaway for me from her presentation was that while physical exercise is important for overall health, "learning new things" is probably even more important in maintaining cognitive function over time.  

The first set of panelists dug deeply into the roles of people supporting others in decision-making, whether with the aid of formal "supported decision-making agreements" and use of powers of attorney or different forms of substituted judgment.  Rebekah Diller, Clinical Professor at Cardozo Law, Megan Wright, Professor of Law and Medicine at Penn State Law, and James Toomey, Assistant Professor of Law at Pace University were the presenters on cutting-edge issues.

In the second panel, Neurology Professor Mark Fisher from the University of California Irvine was very timely in his focus on the potential for cognitive decline in both voters and candidates in politics, discussing a wide range of possible examples across history in the U.S. and Israel.  Associate Professor Jalayne Arias from Georgia State University School of Public Health demonstrated significant concerns in the overlap between criminality and dementia, whether from the standpoint of arrest, conviction, incarceration, or release of persons with cognitive declines.

Sharona Hoffman did double duty during the packed day, presenting issues of cognitive declines both in the workplace and on our roads.   She used humor to soften some of the tough news on the lack accountability for risk in either domain.  It was clear from the audience response -- in both the sold-out auditorium and on-line -- that everyone has a story about dementia and drivers, often from our own families.

My long-time friend working specifically in the "elder law" space, Nina Kohn, Professor of Law at Syracuse and now also a Distinguished Scholar in Elder Law at Yale Law School, gave the latest on proposed -- and much needed -- reforms in court-appointed guardianships, highlighting key concerns addressed in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act,  adopted as of today in two states, Maine and Washington, and introduced or pending in at least four more states.

The speakers in the important last panel of the day were clearly looking to the future on research and developments in the diagnosis, care and community response needed for "healthier" approaches to problem-solving.  Dr. Jonathan Haines, a genetic epidemiologist at Case Western Reserve University, surveyed the advances and challenges in attempting to build a deep bank of genetic information on Alzheimer's Disease. Law Professor Emily Murphy at UC Law San Francisco outlined the emerging theory of "collective cognitive capacity" as an approach to the challenges posed by social, environmental, and economic factors that may be impacted by brain health and cognitive decline.  Tara Sklar, the Director of the Health Law and Policy Program for the University of Arizona College of Law spoke on the potentials and challenges for telemedicine in treating patients with cognitive declines. Professor Sklar is also the new chair of the AALS Section on Aging and the Law.  

A packed day, for sure, with support from Virginia Lefever, Editor for CWLR's journal of law and medicine, Health Matrix, who was receiving formal drafts of papers 
from presenters for a future issue.

And for those of us who were determined to follow Dr. Barnes' encouragement to "keep learning," the evening did not end early, as we continued with a tour of the University's wonderful public art spaces and then on to the world-renowned art collections at the Cleveland Museum of Art -- including a "First Friday" party that had lots of people dressed up and dancing!  "Hands"-Down, it was a great conference!

What Happens When Living Isn't Easy in Senior Living?

 

More than 300  lawyers and other professionals attended the recent Pennsylvania Elder Law Institute (July 25-26, 2023) held in Harrisburg. It was good to be back among long-time friends as well as new colleagues -- our first time together in "real time" since 2019.  The programming began with a tribute to Jeffrey A Marshall, recently retired as a Williamsport, Pennsylvania attorney, who has been a guiding figure for the development of speciaized knowledge and skills for lawyers committed to helping older persons and their family members with practical concerns about care, financing, capacity, agency and more. 

This year the program once again began with a comprehensive "Year in Review" that focuses on recent and proposed legislation or rulemaking, demographic trends, and case law.  Deep appreciation to Marielle Hazen and Rebecca Hobbs for all of their hard work on this key presentation.  Important "keynote"speakers included David Lipschutz, Associate Director for the Center for Medicare Advocacy and legendary Tennessee Elder Law attorney Timothy Takacs.  

I had the pleasure of teaming with Katie Dang and A.V. Powell for a 90-minute session about "What Happens When Living Isn't Easy in Senior Living?" Central topics included concerns about contract rights and obligations in nursing homes, plus we made a deep dive into factors that can affect financial soundness of continuing care retirement communities (also known as CCRCs or life plan communities). 

Katie reported on successful efforts to avoid a one-sided contract of adhesion and help a family negotiate fair payment terms for a parent's admission to a nursing home.  She demonstrated key language to strike or modify to reduce the potential for unintended consequences of signing such agreements.

We also reported on a recent Ohio appellate case that rejected a nursing home's attempt to argue a family members was contractually obiligated to personally pay for care.

 

A.V. brought to the conversation his dry wit and 40+ years of  experience as a professional actuary.  He has analyzed the fiinancial viability of hundreds of CCRCs around the country.  He noted that Pennsylvania is the birthplace of the CCRC concept and he emphasized the significance of current residents who seek accountabiity by making requests to governing boards for timely evaluations of financial conditions.  A.V. also provided us as lawyers with ways to guide clients who are prospective residents in identifying how an enterprise can provide long-range reassurances about sound finances.   Trust is essential for a model that offers, on the one hand, a holistic approach to purpose-buldt housing, great food (and nutrition), activity and, if needed, nursing or dementia care, but, on the other hand  also expects people to pay thousands of upfront dollars in the form of admission fees plus significant monthly maintenance fees.    

Photos used here are by my summer research assistant, the great Noah Yeagley.  Thank you, Noah!  One of the fun aspects of this conference is being able to introduce current students to practitoners and getting to catch up with so many of my former Penn State Dickinson Law students, including Jared Childers, the incoming Chair of the Pennsylvania Bar's Elder Law Section, and who recently became an adjunct professor at Dickinson Law.  Congratuatlions, Jared!  

Ohio Appellate Court Confirms that Agent Not "Personally Liable" for Costs of Nursing Home Care

In one of the earliest articles I wrote on familiy member liability under nursing home contracts, I cautioned that federal law prohibits nursing homes from requiring "guarantees" of payment by family members.  Any family member who is asked to sign "on behalf" of a loved one should carefully consider the role he or she is undertaking, especially if the only role acceptable  and affordable for that family member is "agent."  See "The Responsible Thing to Do About 'Responsible Party' Provisions in Nursing Home Agreements," published in 2004 in the Unversity of Michigan Journal of Law Reform.   

On May 1, 2023, an appellate court in Ohio cited this article when concluding that in the case before it, the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care.  The daughter appears to have properly cooperated or assisted in the original Medicaid application.  Further, the daughter gave authority to the nursing home to debit the bank account where her mother's SS checks were deposited each month, in order to pay itself the "patient pay portion" of the monthly allocation for costs of care when a patient has low income but is otherwise eligible for Medicaid.  Thus the nursing home appears to have had at least the same ability as the daughter to avoid accumulation of a sum greater than $2,000, a resource limit that can trigger disruption of  Medicaid benefits.  There was still another party that could be faulted for what appears to have been an unplanned "excess resource" situation.  The court pointed to the failure of the state agency to give effective notice to interested parties about when and why it was terminaating Medicaid.   See National Church Residences First Community Village v. Kessler, 2023 WL 3162188  (Ohio Ct. App. 2023).  

Bottom line?  Family members or others attempting to help an incapacitated person get proper care are well-advised to consult with an experienced elder law attorney early in the process about how to qualify and protect eligability for Medicaid.  Further, clear, direct communications between the agent, the facility and state agencies are important when seeking to facilitate prompt, proper payments.  

Overwhelmed family members should not be scapegoats, even (especially?) when overwhelmed state agencies and facility billing offices are themselves missing opportunities to keep benefit payments flowing properly.  

Limited Nursing Home Beds Also Impacting Hospital Availability

On December 7, NPR had a short segment during Morning Edition describing the impact of lack of staffing -- and therefore lack of "beds" --  in nursing homes and rehabilitation care facilities, which in turn means hospitals are stuck keeping the patients. Further, Medicaid often won't pay for hospital care for individuals who "only" need nursing home care. 

Listen to the 3-minute segment that uses hospitals in Vermont as the focus:  Limited Nursing Home Beds Force Hospitals to Keep Patients Longer.

The story hints at several subtle issues, including Medicaid funding priorities, especially as Medicaid involves joint federal/state funding, and how health care handles "inability to pay" by residents.   This last semester I've taught a stand alone course on Nonprofit Organizations Law and students are often surprised to learn that the single largest -- and highest income -- segment of the nonprofit world is health care, especially hospital-based health care.   Students ask how a "charity" accounts for earnings and losses -- and we discuss the fact that no organization, nonprofit or for profit, can afford to operate very long without adequate revenues to stay solvent.    The NPR story reflects a theme that my course often raises -- what does it mean to be "charitable"?  

Consumer Financial Protection Bureau and CMS Jointly Caution Nursing Homes and Their Debt Collectors on Their Practices

Today, my Conflict of Laws class and I watched a live-streamed hearing involving "choice of law": "state" (about contracts) versus "federal law" (prohibiting practices affecting contracts)  The context is a bit dramatic and definitely overdue for action.

On the same day as the public hearing, which was hosted by the Consumer Financial Protection Bureau (CFPB) for panelists to identify concerns about certain debt collection practices used by nursing homes against the family members and others, CFPB and the federal Centers for Medicare and Medicaid Services (CMS) issued a "notification letter."  The letter, dated September 8, 2022 and addressed to "Nursing Facilities and Debt Collectors," details improper practices under federal law, such as asking "third parties" to sign documents that, in effect, serve as  personal guarantees of payment of nursing homes.  Without those guarantees, the nursing home may deny admission or continued care.  However, the third parties are often family members or even mere "friends," who may be trying to help get care, but who have little knowledge of the resident's personal finances or eligibility for Medicare or Medicaid, and who may not understand the risks of "agreeing" to sign the contracts.  

I began writing about this problem years ago in a series of articles.  In "The Responsible Thing to Do About Responsible Party Provisions in Nursing Home Agreements," I focused on misleading attempts to have someone agree to be a "responsible party" for purposes of the resident being admitted, without the signer's full understanding that the signature may be construed by state courts as a promise to pay if the resident cannot pay personally or does not qualify for Medicare or Medicaid payments.  See also "Traps for the Unwary in Nursing Home Agreements."

Recent studies conducted under the auspices of Kaiser Family Foundation (at KHN) provide additional examples of the hardships on families and friends. Unfortunately, the problems with attempts to hold third-parties liable for costs of nursing home care have become more intense with Covid-19 crises affecting long-term care.  Indeed, one of the pandemic-influenced contracting practices that adds to the problem is use of "on-line signing processes" for these contracts.  As family members were often not even present during the admission's process, nursing homes are increasingly turning to e-signatures. The swift moving electronic process for initials and virtual signatures all too easily flies by without any true reading, much less understanding, of the documents and with close to zero likelihood the signers will be able to ask questions (such as "Do I have to sign this?" or "What happens if I don't sign this?") and gain accurate answers.  Nursing homes deserve to be paid for their care -- but the right way to do this is to involve people who can help the families apply for benefits under Medicare or Medicaid, and who won't insist on private pay if the resident's resources are too low to support such pay.   

In my experience, thoughtfully-managed, well-run nursing homes definitely exist.  They get sound business and legal advice and know that is more cost effective to help families through the process than sue them when the documents are not understood.  Experienced elder law attorneys, including specialists in Legal Services offices, can help too.  But while reading the KHN report linked above, too often I was seeing "default judgments" involved here -- and in those instances, that usually means a lack of informed agreement on the part of signers or that the admission processes are otherwise not working properly.   

Planning for Your Special Needs Child and Retirement

The New York Times ran this article last week. Planning for Your Retirement, and for a Child’s Special Needs, All at Onceexplains "[f]or parents of children who have serious disabilities or special needs, the challenges of growing and preserving their wealth are magnified exponentially, and the stakes are much higher. While they are trying to plan for their own retirements, these parents need to simultaneously secure the ‌ stability of a son or daughter who will be dependent on them‌ until — and even  after — their deaths." The article does a good job of framing and discussing the issues and options and provides good examples.

Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id. 

CMS Actions to Improve SNF Resident Quality of Life and Care

Last month, CMS issued an advisory that it had "Issue[d] Significant Updates to Improve the Safety and Quality Care for Long-Term Care Residents and Call[ed] for Reducing Room Crowding."

[CMS] issued updates to guidance on minimum health and safety standards that Long-Term Care (LTC) facilities ... must meet to participate in Medicare and Medicaid. CMS also updated and developed new guidance in the State Operations Manual (SOM) to address issues that significantly affect residents of LTC facilities. The surveyors who use these resources to perform both routine and complaint-based inspections of nursing homes are responsible for determining whether facilities are complying with CMS’ requirements.

A fact sheet on the updated guidance, also released last month, is available here.

Tampa Bay Area SNF Closes After Medicare Loss

My local paper, the Tampa Bay Times, reported a story, A Florida nursing home lost its Medicare benefits. Residents lost a home. The article covers the impact on residents being forced to locate, the corporate structure of the SNF, and various issues regarding resident care.  The article notes that "[the nursing home ...  became the latest in Florida formerly affiliated with Consulate Health Care to lose its federal benefits since May because of poor patient care. The federal government considers termination of Medicare and Medicaid a “last resort,” implemented only after “all other attempts” fail to resolve health and safety deficiencies."  The full article is available here.

Will Medicaid Tie Quality Care to the Funds?

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

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

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

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

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

Podcast on Quality SNF Care

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

 

ACL New Fact Sheet When Public Health Emergency Expires

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

The governor's veto statement explains:

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

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

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

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

Important Report on Nursing Homes from the National Academies

I've been a bit behind on posting and although this report was released 8 days ago, I wanted to be sure readers were aware of it. The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff was released by the National Academies on Sciences, Engineering, and Medicine. Here is the description

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

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

You can download the report as pdf or read it online for no charge. You can buy a hard copy from this link.

Thanks to Morris Klein for alerting me to the release of this report.

Bill Introduced to Repeal Medicaid Estate Recovery

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

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

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

The Fading Possibility of Aging At Home

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

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

No More Emergency, No More Medicaid?

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

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

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

The full article is available here.

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

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

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

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

 

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

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

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

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

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

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

Now-get up and take a walk!

Roundup of Articles Part 2

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

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

National Guard Empties Bedpans and Clips Toenails at Nursing Homes

Why Older Women Face Greater Financial Hardship Than Older Men

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

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

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

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

and

Colombian woman dies by euthanasia after historic legal fight

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

Now we are all caught up.  More next week!