Monday, May 2, 2022
- 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.
- All renewal forms and notices must be accessible to people with limited English proficiency and people with disabilities.
- Many people who are no longer eligible for Medicaid will have other coverage options.
- If someone is disenrolled or their Medicaid coverage changes and they disagree with their state Medicaid agency’s decision, they can appeal.
- 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.
Friday, April 29, 2022
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."
April 29, 2022 in Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, April 14, 2022
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.
Thanks to Morris Klein for alerting me to the release of this report.
Sunday, April 3, 2022
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.”
Thursday, March 31, 2022
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.
Monday, March 21, 2022
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.
Friday, February 25, 2022
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.
Thursday, February 17, 2022
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!
Friday, January 14, 2022
Here are the rest of the news items I mentioned in yesterday's post.
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).
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!
Tuesday, December 21, 2021
Yesterday I blogged about California's consideration of tying Medicaid funding for SNFs to certain quality of care benchmarks. Today I wanted to let you know about a new report released by the National Consumer Voice for Quality Long-Term Care. State Nursing Home Staffing Standards SUMMARY REPORT opens noting that
"Chronic understaffing has been a serious problem in nursing homes for decades and has been exacerbated by the COVID-19 pandemic. While there are numerous factors contributing to this problem, one major cause is the lack of adequate minimum staffing standards at both the state and federal levels. Minimum standards ensure that staffing will not fall to a level that would be harmful to residents. Local, state, and national advocates have pushed for minimum staffing standards for years. Knowledge of the range of state staffing requirements can be very useful in these efforts. To that end, the focus of this summary report is to present staffing requirements from each state and analyze how they compare to each other and to levels recommended by research conducted for the federal government. This information can also be helpful to policymakers, researchers, and the media.
The report discusses the connection between staffing and quality care, the research on minimum staffing standards, laws and regs at both state and federal levels, an analysis of state staffing standards, recent developments, and concludes with this
Twenty years after the CMS study found that at least 4.1 hprd of direct care nursing staff time are needed just to prevent poor outcomes, state staffing requirements, with a few exceptions, are nowhere near that recommended level. Only the District of Columbia requires this overall level of staffing, and only six states mandate the presence of a registered nurse 24 hours a day regardless of facility size. Despite what is known about the relationship between staffing levels and quality care, staffing standards in almost every state remain severely low. Residents have waited decades for adequate staffing around the clock. Every day that passes without sufficient staffing jeopardizes their health, safety and welfare. Ongoing and robust advocacy is needed at both the federal and state levels to provide residents with the care to which they are entitled and that they deserve.
Monday, December 20, 2021
Well, as I write this, it looks at though the world is heading for another COVID surge. Thus, this recent article from Kaiser Health News is particularly timely. After ‘Truly Appalling’ Death Toll in Nursing Homes, California Rethinks Their Funding opens with this sobering statistic: about 1 of every 8 of those California residents who died due to COVID resided in SNFs which translates to roughly 9,400, with an added 56,275 SNF residents with confirmed COVID who survived it. As a response, the article notes, that the Governor's office is looking into a proposal that ties SNF funding to performance, with "those that meet new quality standards would get a larger share of state funding than those that don’t."
There will be several hurdles, and the industry is gearing up to oppose it while families of those who died are prepared to support it. For example, the CEO of California Association of Health Facilities, doesn't think the facilities should bear the blame, since "residents naturally at higher risk than the rest of the public, [and] facilities were forced to accept hospital transfer patients who had not been tested for the virus, they couldn’t get adequate supplies of personal protective equipment, and they suffered as staff members got covid in the community and then brought it into work." The counter-point from various studies notes that SNFs "with fewer nursing staff members experienced significantly higher covid infection and death rates. That devastating outcome is bolstering a two-decades-long argument by patient advocates that nursing homes must hire more workers."
Staffing is not the only issue, and the article explores others, including the profits made by the various chains. California is not alone in considering actions to improve quality of care. I'm sure there will future blogs on this topic.
Tuesday, December 14, 2021
The New York Times published the results of an investigation into SNF deficiencies in How Nursing Homes’ Worst Offenses Are Hidden From the Public opens with 3 examples of errors and notes "[s]tate inspectors determined that all three homes had endangered residents and violated federal regulations. Yet the federal government didn’t report the incidents to the public or factor them into its influential ratings system. The homes kept their glowing grades."
Describing the results of the investigation, the article notes
that at least 2,700 similarly dangerous incidents were also not factored into the rating system run by the federal Centers for Medicare and Medicaid Services, or C.M.S., which is designed to give people reliable information to evaluate the safety and quality of thousands of nursing homes.
Many of the incidents were uncovered by state inspectors and verified by their supervisors, but quashed during a secretive appeals process, according to a review of thousands of pages of inspection reports and nursing home appeals, which The Times obtained via public-records requests. Others were omitted from the C.M.S. ratings website because of what regulators describe as a technical glitch.
Knowing the importance of the results of the inspections, the article offers that "[o]n-the-ground inspections are the most important factor in determining how many stars homes receive in Medicare’s rating system. The reports that inspectors produce give the public an unvarnished view inside facilities that house many of the country’s most vulnerable citizens."
Despite the importance of such info, the system isn't transparent. "On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public." Even though CMS may prevail, the results don't always end up on the compare website. Why not? "Jonathan Blum, the chief operating officer for C.M.S., said that citations are omitted during state-level appeals to be fair to nursing homes that are disputing inspectors’ findings. He acknowledged that even after appeals are exhausted, some citations still don’t appear on Care Compare. He said C.M.S. is 'working to correct this issue.'"
The article offers an excellent overview of the inspection requirements and process, as well as pointing out some of the limitations of the process.
This is a really important report and I plan to make it required reading for my students. You need to read it also!
Thanks to my friend and colleague, Professor Bauer, for sending me the link to the article.
December 14, 2021 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 6, 2021
Massachusetts Supreme Court Holds Conservator Entitled to Absolute Immunity for Conduct "Authorized or Approved" by Probate Court
In a case of first impression for the high court in Massachusetts and decided in August 2021, the Supreme Court concluded that where a conservator acts on behalf of an elderly woman "pursuant to judicial approval as a quasi-judicial officer," the conservator is entitled to "absolute immunity for conduct that is authorized or approved by the probate court."
In Hornibrook v. Richard, the plaintiff is one of two sons of a woman in her "mid-eighties and suffering from progressive dementia due to Alzheimer's Disease." He was appointed by a Massachusetts probate court to serve as guardian for his mother, but when his allegedly neglectful brother objected to his appointment as a permanent guardian for their mother, the probate court appointed a Massachusetts licensed attorney, selected from a list of qualified attorneys, to serve separately as the conservator. The dual appointments occurred in the context of a serious, ongoing dispute between the woman's two sons. It seems clear the court appointed the nonfamily-member conservator in an effort to diffuse the family dynamics.
Instead, attempts by the conservator to evict or negotiate with the resident-son from the mother's home appear to have dragged on for months, and the mother was never able to return to home. The guardian-son eventually sued the conservator, alleging (1) breach of fiduciary duty, (2) malpractice, (3) conversion, and (4) fraud.
The Supreme Court used Massachusetts' "functional analysis" for determining whether an individual performs a quasi-judicial function that entitles the officer to "absolute immunity." The court compared the case to prior Massachusetts immunity decisions involving a court-appointed psychiatrist, court clerks, guardian ad litem in family court, and a personal representative in an estate, concluding that where individuals are appointed to perform "essential judicial functions" they are entitled to absolute immunity.
Facts that appeared to be key to this ruling included the conservator's formal request for court authority to take specific, disputed actions, such as renovating the house and placing it on the market for sale.
The court issued a de-facto caution, however, that immunity may not be granted for all actions taken by a conservator:
"Because the plaintiff here does not allege that the defendant was acting outside the express authorization of the probate court, we do not address the extent to which the conservator may be liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court."
One can anticipate more motions and probate hearings being sought by guardians -- at least the cautious guardians -- as a result of this ruling. But one can also expect that family members resentful of slow-moving protective-probate proceedings will not be reassured by this ruling.
Monday, August 30, 2021
Vox recently published The staggering, exhausting, invisible costs of caring for America’s elderly. "As someone ages, their health appears to gradually deteriorate in a way that doesn’t seem alarming. Most of the time, though, they’re inching toward a cliff — and when they fall off, they find themselves on another health cliff, and another, and another. With each cliff, it gets more difficult for a family member to catch them." Lack of long term care insurance and a lack of understanding of what Medicare covers leaves many unprepared when the need for caregiving arises. Nursing homes remain expensive and concerns arising as a result of COVID remain relevant today, the article notes. The impact on caregivers is highlighted in the article. Here are some excerpts:
[M]ost of this care work — both paid and unpaid — remains invisible. According to the most recent data from the AARP, an estimated 41.8 million people, or 16.8 percent of the population, currently provides care for an adult over 50. That’s up from 34.2 million (14.3 percent) in 2015.
Of those caregivers, 28 percent have stopped saving, 23 percent have taken on more debt, 22 percent have used up their personal short-term savings, and 11 percent reported being unable to cover basic needs, including food. The average age of someone providing care for an adult is 49, but 23 percent are millennials and 6 percent are Gen Z. Sixty-one percent are women, and 40 percent provide that care within their own homes, up from 34 percent in 2015.
A lot of these caregivers are really, really struggling. What’s required of them is more complex and time-consuming than just 10 years ago, as caregivers deal with overlapping diagnoses related to physical health, mental health, and memory loss as the elderly live longer. The work is much more than just clearing out the guest room or setting another place at the dinner table.
I find the article thoughtful and thought-provoking. It's worth reading and I'll use it in my class. Consider this excerpt:
t’s only recently that we’ve settled on the understanding that care for elders is natural, moral, and ideal, even when the people providing this care are suffering or lacking the skills to provide the quality of care the recipient requires, or both. Crucially, by locating responsibility for care squarely on the family unit, it also continues to limit or excuse greater society — which is to say, the government — from the responsibility of providing care to the most vulnerable members of society. Our belief that the family is always the best and preferred care provider makes it much harder to advocate for the sort of larger, taxpayer-funded systems that would make all care, regardless of whether it’s provided by a family member, far easier.
There are other consequences to this naturalization of family responsibility. When labor is continually framed as something done out of love or instinct, it loses its connotation as labor and, by extension, its value. When women (and white middle-class women in particular) began moving into the workforce en masse in the second half of the 20th century, they didn’t quit their domestic work. They just did two jobs, one layered on top of the other; they would put in a full day in a traditional workplace for pay, then went home and kept working, unpaid.
Many women could only juggle these two separate jobs with the help of other women, both paid and unpaid. Poor working women had been doing this for some time, relying on “kith and kin” for child care in particular. Some middle-class women increasingly began to do the same, relying on friends but mostly family, while some began paying other women to do the work. This domestic labor, whether in the form of child-rearing, laundering, cleaning, or cooking, was essential, but because it had been so thoroughly normalized as unpaid work, it was also easy to normalize incredibly low wages for those who do it, even if that person had no relation to the family.
The article discusses the stresses of, and costs from caregiving and concludes with a sense of urgency regarding a looming crisis, if action isn't taken
Right now, several experts told me, the public alarm around the state of elder care is about where it was with child care 10, 15 years ago. We didn’t act on the alarm bells when it came to child care, and now the system is in a pandemic-accelerated crisis, with rippling effects across the economy. The question, then, is whether we want to wait the 10, 15 years for that implosion, right as even more Gen X-ers, millennials, and older Gen Z-ers age into caregiving roles and, shortly thereafter, need their own care. Or do we want to address the problem now, before it risks collapsing us, and our families, entirely.
Thanks to Morris Klein for sending me the link to this article.
Friday, August 13, 2021
The New York Times recently published an opinion piece, Getting Old Is a Crisis More and More Americans Can’t Afford. The article has some good statistics in it. Focusing on long-term care needs, the article compares demand and supply and costs. "[M]ost seniors will require long-term care. Almost 70 percent of Americans turning 65 today are expected to need extended services and supports at some point. About 20 percent will need care for more than five years. Despite this, the majority of those age 40 and over have done no planning for their long-term care, according to a 2021 survey by the AP-NORC Center for Public Affairs Research." The article notes the scope and limitations of Medicare, Medicaid and long-term care insurance and examines the work of "a broad cross-section of policy experts, consumer advocates and industry representatives [who] formed the Long-Term Care Financing Collaborative to explore more sustainable funding models. The central recommendation of the group’s final report, issued in 2016, was the creation of a universal public insurance program." Noting challenges of making this a reality, the author suggests that "[t]he outlook may be more promising at the state level. In 2019, Washington State passed the nation’s first state-run long-term-care insurance program. The WA Cares Fund is to be funded by a 0.58 percent payroll tax on employees. Starting in 2025, eligible residents can receive benefits of $100 per day, with a lifetime cap of $36,500."
Wednesday, August 11, 2021
Two recent developments worth mentioning. First, at the ABA annual meeting, the ABA passed resolution #800 from the Commission on Law & Aging, the Section on Civil Rights and Social Justice, and the Senior Lawyers Division, concerning density and size for nursing homes. The report, proposed resolution and final resolution are available here. The direct link to the final resolution can be found here. Here are the 3 resolutions:
RESOLVED, That the American Bar Association urges the U.S. Congress and the Department of Health and Human Services to institute a review of the advisability and feasibility of phasing in size and design standards for nursing homes that would require small, household model facilities with single rooms and private baths, given their safety and infection control advantages in public health emergencies such as the Covid-19 pandemic;
FURTHER RESOLVED, That the American Bar Association urges Congress and the executive branch to provide financial incentives for the development and operation of nursing homes meeting size and design standards developed pursuant to this review through means such as, but not limited to, restructuring the Section 202 Supportive Housing for the Elderly Program of the Department of Housing and Urban Development (HUD), tax incentives under the Internal Revenue Service, or actions by other executive branch agencies to provide or encourage low cost financing for the redesign, remodeling, building and rebuilding of nursing homes meeting these standards; and
FURTHER RESOLVED, That the American Bar Association urges the Centers for Medicare and Medicaid Services to change Medicare and Medicaid regulations and payment policies to pay for single private rooms and bathrooms for all residents, with reasonable reimbursement rates for such rooms.
Second, Sens. Ron Wyden of Oregon and Bob Casey of Pennsylvania and others introduced a Senate bill, the Nursing Home Improvement and Accountability Act of 2021. The bill has 3 parts, (1) transparency and accountability, (2) staffing improvements, and (3) "building modification and staff investment demonstration program." The full bill is available here. A summary is available here. And a section analysis is available here. Here are some key points of the bill, from the AP story about it:
— Raise salaries and benefits for nursing home staff by giving states the option of an increase in federal Medicaid matching funds, available over six years. Low wages in the nursing home industry make for constant turnover, a critical problem even before the pandemic. The bill also starts a process for setting minimum staffing thresholds.
— Require nursing homes to have an infection prevention and control specialist.
— Require nursing homes to have a registered nurse available 24 hours a day, instead of the current eight hours.
— Bolster state inspections of nursing homes, and add more low-performing facilities to a “special focus” program that helps them improve quality.
— Forbid nursing homes from requiring residents and families to agree in advance to arbitration, thereby waiving their rights to go to court over disputes involving care.
Thursday, July 29, 2021
Filial Friday? Court Holds Son Liable for Attorneys Fees Incurred While Securing Medicaid Coverage for Father's NH Care
Pennsylvania courts use "filial" responsibility laws in, shall we say, creative ways, especially when they catch any whiff that children helped themselves to their parent's money rather than using that money to pay for their parents' nursing home care. One of the key modern-era cases for filial support law in Pennsylvania is Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066 (Pa. Superior Ct, 2003), where the court remanded a case for decision on filial support law grounds, in the absence of other viable theories, in order to hold a daughter liable for her mother's costs of nursing home care. The court was clearly annoyed by the evidence the daughter had transferred some $100k of her mother's funds to herself using a "valid" power of attorney, instead of paying the nursing home.
It probably doesn't make the court any happier if the defendant/child is also a lawyer.
In the latest Pennsylvania decision decided by the Court of Common Pleas in Montgomery County, Coates v. Salmon, No. 2018-16878, both the plaintiffs and the defendant are lawyers. The trial court was asked to determine whether a son was personally liable for attorneys fees incurred when the son "engaged" another attorney, one experienced in Medicaid issues, regarding a penalty period assessed against his father. The penalty made his father ineligible for 296 days in Medicaid funding for his nursing home care. The lawyer was able to negotiate a reduced penalty period, with a successful argument that certain pre-admission transfers were not made in anticipation of applying for Medicaid. The settlement reduced the dollar effect of the penalty by more than $68,000.
Nonetheless, the son declined to pay the attorney his requested fee of $7,606, arguing there was no contract as the attorney had failed to comply with Pennsylvania Rule of Professional Responsibility 1.5(b) that requires "the basis or rate of the fee" to be "communicated to the client in writing, before or within a reasonable time after commencing the representation." The lawyer-son seemed to be arguing, at least indirectly, that the only fee he'd "agreed" to pay was a $500 up-front "consultation" fee.
The court agreed with the defendant-son on the contract issue, but granted the full sum of the requested fees as "reasonable" under a theory of quantum meruit. And that's where Pennsylvania's filial support law came into play to support the court's decision on the son's liability:
Mr. Salmon [the defendant/son] contended, however, that any claim in quantum meruit could be asserted only against his Father, and not against Mr. Salmon personally. The argument was that Father was liable to the Nursing Home for any services not reimbursed by Medicaid and Father was therefore the sole beneficiary of the substantial reduction in the penalty. It is true that to establish a claim in quantum meruit against Mr. Salmon, Plaintiffs [the Elder Law attorney and his firm] were required to show that he benefited from Mr. Coates's services. . . . Plaintiffs clearly met that requirement, however, because Mr. Salmon himself would have been liable to the Nursing Home for the $86,786 penalty if it had not been successfully diminished by Mr. Coates.
The doctrine of filial responsibility is codified in Section 4603(a)(1)(ii) of the Domestic Relations Code, 23 Pa. C.A. Section 4603(a)(1)(ii). . . .
This provision and its predecessor statute have been repeatedly cited as authorizing a suit by a nursing home or other medical provider to recover fees for the care of an indigent patient from the patient's adult child with the means to make payment. . . . It is thus clear that without the reduction of the penalty to a relatively trivial sum, Mr. Salmon would have been liable for -- or, at the least, substantially at risk of liability for -- the amount of Nursing Home fees denied by Medicaid.
Further, the imposition of liability on Mr. Salmon in quantum meruit is fully consistent with principles of equity. The evidence clearly showed that Mr. Salmon, in engaging Plaintiffs' services, understood his obligation to pay for those services. . . . And, most significantly, in Mr. Salmon's letter of May 6, 2016, responding to Plaintiffs' bill, he disputed the reasonableness of Mr. Coates's fees and the quality of his services, but he never suggested that Plaintiffs were billing the wrong person. . . . [I]t was compelling evidence that Mr. Salmon understood his responsibility to pay Plaintiffs' legal fees and that his later contention that only his Father was responsible was a post hoc excuse for his unwillingness to pay.
The detailed, well-written opinion dated June 23, 2021 is available at the link above, and the case is on appeal to Pennsylvania's intermediate court of appeals, the Superior Court. In Pennsylvania, trial judges have the opportunity to write their full opinion, rather than just their final decision, after a party has appealed the ruling and after that party has identified all claims of errors. In my experience, a detailed, well-written Pennsylvania trial court opinion has a good chance of being affirmed on appeal. For an additional perspective on this case, see the Elder Law Answer summary here.
Thursday, July 15, 2021
The Center for Medicare Advocacy recently released a new report, Nursing Home Industry is Heavily Taxpayer-Subsidized.
I offer you this opening paragraph as a teaser to the 6 page report:
It is well-known that Government health care programs, Medicare and Medicaid, are the primary payers for nursing home care. The two federal programs paid facilities tens of billions of dollars for providing care to residents and were the primary payer for nearly 80% of residents. Far less known is that, in addition to receiving these direct payments, the nursing home industry also benefits from the extensive subsidies, through income-related public benefit programs – Medicaid, food assistance, housing assistance, heating assistance, cash payments, tax credits, and more – that help support its underpaid staff. The Government subsidizes the nursing home industry by billions of dollars each year by providing needs-based public benefits and earned income tax credits to its many low-wage nursing home workers. (citations omitted in this quote).
The article discusses the facilities, the employees, salaries and public benefit programs, and issues this call to action: "Change is beginning to happen in wages for low-wage workers, but until all nursing home workers’ wages are raised to (at least) living wages and until all workers receive health benefits and paid time off, the Government will continue to subsidize nursing homes by billions of dollars by providing needs-based public benefits and earned income tax credits to the nursing home industry’s low-paid workers. ..." (citations omitted in this quote).
In the interest of full disclosure, I am on the board for the Center for Medicare Advocacy.
Tuesday, June 22, 2021
Richard Kaplan, elite elder law professor and friend, sent me the link to this recent article from the Wall Street Journal, One Family’s Lessons Learned From a Decade of Caregiving.
As do many families, the spouse committed to caring for his spouse with dementia.
The family learned much along their decade-long caregiving journey, about setting up trusts, getting help in the home and respecting each other’s decisions. They think about a few things they would have done differently. And they found that caregiving, while relentless and heartbreaking at times, can also be rewarding.
Being a family caregiver is one of the most difficult jobs and one that nearly everyone will have at some point. An estimated 42 million people in the U.S. provide unpaid care to those 50 and older, a 14% increase since 2015, according to the Caregiving in the U.S. 2020 report by the National Alliance for Caregiving and AARP.
Each family is different, and what works for one family may not work for another, says ... [the] chief executive of the National Alliance for Caregiving. Family members don’t always agree about when to call in hospice or sell a house, but it’s important to be supportive, she says. “The hardest thing to say is, ‘It’s not the choice I would make, but I want to honor their choice.’ ”
The story is heartfelt, and compelling. The caregiver spouse offers this advice as to what changes he would have made.
He would have gone to an elder-law attorney earlier to make sure their assets were in a trust that would better protect them from having to be spent down to qualify, if needed, for Medicaid’s coverage of long-term care costs.
And he would have bought a single-story patio home within walking distance of their church and shopping center when [his spouse] suggested it 20 years ago. “It was what [she] wanted to do, but I wanted the yard. My own little domain. I wish I would have,” he says. “Here I am now with this big house, by myself. I’ll probably reach a point where I can’t take care of it.”
Knowing how hard it is to provide hands-on care, and not wanting to be a burden, he recently told his daughters, “Just put me in a nice place. You don’t have to do what I did for mom. You don’t have to take me into your house. I don’t want that.”
I'm assigning this reading to my students. Thanks Professor Kaplan!
June 22, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)
Monday, May 31, 2021
Starting off the month of June with another roundup of articles about nursing homes.
First, from the New York Times at the end of April, Cuomo Aides Spent Months Hiding Nursing Home Death Toll.
Then, also from late April, this article from Politico, Will the Nursing Home of the Future be an Actual Home?
Then, a recent report from the GAO, COVID-19 in Nursing Homes: Most Homes Had Multiple Outbreaks and Weeks of Sustained Transmission from May 2020 through January 2021 (the link takes you to the page with links for highlights, the full report, fast facts, and a podcast).
On another topic related to SNFs, as we approach hurricane season, this important report about facilities in Florida with emergency power backups. See, generators by Florida county for ALFs and SNFs.