Thursday, June 4, 2020
Pittsburgh-based elder law attorneys Frank Petrich and Julian Gray write regular columns for the Pittsburgh Post-Gazette. Recently they pulled out their crystal ball to gaze into the future, with the hope that positive change is possible if we pay heed to the lessons we are learning during the response to Covid-19. In looking at long-term care, they write:
It has been difficult for families, as well as elder law attorneys, over the past few months to connect with clients in long-term care facilities. It’s understandable that restricting access to hospitals, nursing homes and other long-term care facilities saves lives and reduces exposure for all parties.
However, given the significant concentration of COVID-19 cases within nursing homes and the inability for families to be with loved ones in person, a radical shift in the delivery of long-term care services is on the horizon.
For now, this points toward more people wanting to receive assistance in their homes versus moving into a long-term care facility. Like many states, Pennsylvania has talked about developing programs to keep people in their homes since the Rendell administration.
Maybe now that push has come to shove and large stimulus packages are happening weekly, our government can truly live up to its promise of helping people stay in their homes while receiving their long-term care services and support.
For more, read Elder Law Guys: Long-term Care after COVID-19, posted May 25, 2020 for the Pittsburgh Post-Gazette.
Friday, May 29, 2020
Looking forward from COVID , here is a story from Wired, Some Nursing Homes Escaped Covid-19—Here's What They Did Right.
The story focuses on steps that can be taken, and the importance of doing so early. But even more so, the story examines the design of nursing homes. Think about it. As the article points out
Residents, who are older, frail, and often have comorbidities like heart disease or diabetes, are more susceptible to severe Covid-19 infections. Many need help performing basic tasks like eating, dressing, or bathing—care that can’t be delivered through a video appointment, making it more likely they could get an infection from the aides who help them, or pass the virus along to their caretakers. Those aides may work at several different facilities, and unknowingly carry it from one home to another.The layout of these facilities also furthers contact in various areas. Most residents share bedrooms, bathrooms, activity rooms, and dining rooms—and staffers share a break room. Those group spaces are designed partly to cut costs, and also to encourage socializing. But shared spaces have also helped spread the virus. Senior facilities do have protocols to handle outbreaks like the flu, but the pandemic arrived so quickly and the SARS-CoV-2 virus is so contagious that many facilities were caught unprepared. “There’s an extent to which this virus just had the upper hand,” says Anna Chodos, a geriatrician at the UCSF. Unlike hospitals, most nursing homes aren't ordinarily well stocked with gear like masks and gowns, which aren’t necessary when containing the flu.
[P]recautions are only helpful to a point, according to [one expert]. “These outbreaks are continuing and they’re going to continue in nursing homes,” she says. There are still a lot of unanswered questions about how and why the virus has spread so quickly in some homes, but not in others. Based on early data, she says: “It’s about the size of the facility and the amount of spread in your community.”
Nevertheless, [she] warns that while researchers are working furiously to figure out solutions, they still don’t have all the answers: “It's a turbulent time and we're trying to make clinical and operational decisions with incomplete information.”
The article then discusses caring for elders in their homes rather than SNFs and what it would take for that to become a common occurrence. With potential looming budget cuts from states, the potential for that shift may be a long time coming.
This article does a good job in covering the various issues faced by those who run SNFs as well as those faced by individuals who have family in SNFs. Read it!
Wednesday, May 27, 2020
Looking at Reasons for Opposition to Federal Immunity for Long-Term Care Facilities Related to Covid-19
A long-time friend and advocate for quality of life as we age contacted me today to discuss what to think about any attempts at federal legislation to immunize long-term care facilities from liability related to Covid-19. I admitted I hadn't had time to think about this yet! So, I'm starting my thinking now. My blogging colleague, Becky Morgan, said earlier this month that even at the state level, immunity is not an "easy" issue.
Historically, when Congress passed the Nursing Home Reform Act of 1987, it was an important attempt to create minimum national standards for quality of care, in light of a long nightmare of horror stories about inadequate care across the nation. But, even as it established standards (such as a prohibition on "restraints" without documented medical necessity), it did not establish a "right to sue" by individuals claiming failure to comply with the standards. That was probably a compromise worked out with the various lobbying groups, but the consequence of that was states were left to decide on their own about whether and to what extent rights exist for a patient to sue for negligent care. So, one could say that it would be "unprecedented" for Congress to actively shield the long-term care industry from quality of care standards, stepping on the toes of the states. (Plus, at first blush, I don't see how Congress has any authority to craft immunity for facilities that are not subject to Medicare/Medicaid funding and oversight).
On the other hand, depending on how broad or narrow any such legislation was drafted, limited immunity might be appropriate on a narrow ground. States have been relying on existing federal Medicare/Medicaid law that effectively prevents nursing homes from turning away Covid-19 infected residents as long as they have open beds and the patient qualifies for Medicaid/Medicare. So those nursing homes have been, in effect, forced to take infected patients, which greatly increases the potential for cross infection, even with "good" infectious disease procedures in place. But isn't this a "problem" that should be fixed, rather than pasted over?
Advocacy groups on behalf of older persons, disabled persons, and consumers and workers are making it clear they oppose broad federal immunity. See the May 11, 2020 letter to Senate Chairman Graham and Ranking Member Feinstein, signed by California Advocates for Nursing Home Reform, The Center for At Risk Elders (CARE), Center for Medicare Advocacy, Community Legal Services in Philadelphia, Justice in Aging, Long-Term Care Community Coalition, National Association of Local Long Term Care Ombudsmen, National Academy of Elder Law Attorneys, National Association of Social Workers, National Association of State Long Term Care Ombudsman Programs, the National Disability Rights Network, Services Employees International Union, as well as individual law firms.
See also the letter of May 11, 2020 sent by AARP.
Addendum: See also 140 Groups Now Oppose Immunity; Nursing Homes Want Immunity and New York Regrets Giving It to Them, posted May 14, 2020 on Public Citizen.
May 27, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)
Sunday, May 24, 2020
Is What CMS Doesn't Say as Important as What CMS Does Say in Recommendations for "Reopening" Nursing Homes?
On May 18, 2020, Centers for Medicare and Medicaid Services (CMS) released a ten-page Memorandum making recommendations to state and local officials for operation of "Medicare/Medicaid certified long term care facilities (hereafter 'nursing homes') to prevent the transmission of COVID-19."
In some ways, nursing homes may be breathing a sigh of relief as the memo does not use any mandatory language directed at the operators. In some instances CMS identifies "choices" for the states, such as whether to require all facilities in a state to go through reopening phases at the same time, by region, or on individual bases. The memo says that facilities "should" have CDC-compliant testing plans, including "capacity" for all residents and staff members to have a single baseline test with retesting until all test negative. What does that mean? You should be able to test everyone before you ease visiting restrictions, but you can choose not to do so? On page 4, CMS cross-references ("cross-walk") to reopening phases for all "senior care facilities" under President Trump's Opening Up America Again plan. The document describes "surveys that will be performed at each phase" of the reopening process, referring to the states' obligations to conduct surveys on prioritized timelines, although with no hard numbers for such oversight suggested.
CMS recommends that each nursing home "should spend a minimum of 14 days in a given phase, with no new nursing home onset of COVID-19 cases, prior to advancing to the next phase," and CMS says states "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions for facilities that have had a significant outbreak of COVID-19 cases."
Significantly, there is nothing in the latest CMS guidelines regarding staff members who work at more than one facility, thus posing a clear potential for cross-contamination. That seems to me, at least, especially short-sighted.
May 24, 2020 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, May 15, 2020
Another interesting conversation with a long-term care administrator this week was about "what kind of tests" are important in the Covid-19 context, especially for older adults in a congregate setting. A first question is whether every member of the staff and the residents should be tested regardless of the presence or absence of any symptoms. A Washington Post editorial on May 14, 2020 called for "extreme measures" Of course, the utility of such threshold testing mandates depends upon the availability of the means to test and how quickly the results of the tests will be processed. It is unlikely that the nation's number of residential care facilities will have the White House's "instant" testing equipment, right?
But when Covid-19 is present in any congregate care setting, the administrator explained a second test may be even more important. The test is for oxygen levels, taken with a monitoring device, sometimes referred to as an oximeter and often attached to a finger of the person in question. She explained to me that with Covid-19, the impairment of the lungs can occur with dramatic quickness and not necessarily with any complaints from the patient about shortness of breath. The director explained that donations of oxygen concentrators to her community meant they are able to respond to lowered oxygen levels within seconds -- rather than within life threatening minutes or hours -- to provide enhanced oxygen for the resident. Further, many at-risk people resident not in nursing homes, but in the many other variations of congregate senior care.
Have you tried to convince a person with a cognitive impairment or an anxiety disorder to wear a mask or agree to keep that oximeter attached to their hand? Will "extreme measures" include funding to support needed increases in care-staff ratios?
Wednesday, May 6, 2020
If you are trying to keep up with all the moving parts during the pandemic, you know how hard it is to stay on top of developments and ever-changing information. The Centers for Medicare and Medicaid Services (CMS) has been issuing a number of pandemic-related interim regulations, advisories, etc. which are available from their COVID-19 website. (You can also sign up for their daily emails which helps). I wanted to point out a few in case they escaped your attention.
- waiver of the 3 day-hospitalization requirement for SNF coverage.
- Requiring facilities to report COVID-19 cases to CMS, CDC, families, etc.
- Creation of an Independent Commission to Address the Safety & Quality in SNFs.
The website also has a lot of information about the various Medicaid waivers CMS has approved for states. CMS isn't the only government agency making changes tor respond as various issues crop up, due to the ongoing crisis. Subscribe to the daily CMS briefing to help you stay up on at least one agency's actions.
Friday, April 24, 2020
Transparency Issues in Long-Term Care: The Potential for Misuse of Confidentiality Policies to Hide Infection Facts from the Public
Recently I was talking with a friend in another state who is the director of an assisted living facility that largely serves older adults who have significant risks factors. I asked, "Have you had any residents or staff members that have tested positive for COVID-19?" I asked her directly, because there was no way to know the answer to that question from public websites, either in her state or on a national basis. The good news was that her facility had had no such diagnoses, either among staff or residents. I also asked what she felt was key to avoiding infections, and we talked about the rates uncovered in other facilities in her own state. She said bluntly, "We learned from our experience with influenza the last two years that we had to make real changes, and we did so before the COVID-19 was a reality and doubled down when we started hearing about the coronavirus."
Internal infections have long-been a documented problem in residential care settings, and certainly not limited to so-called "nursing homes." Contributing factors include residents who may have physical or mental conditions that make self-protection difficult and perhaps impossible. My sister and I used to struggle mightily with a family member whose dementia interfered with the simple task of hand-washing -- even though this same person was the one who taught us the importance of soap and water from the time we were small children. It is perhaps ironic to recall that as a horse-mad girl I had tried to persuade both of my parents that there should be an exception for "barn dirt," on my theory that horse-related dirt was "clean dirt." My mothers still insisted I undress on the back porch and wash thoroughly before coming in for dinner. Wise woman, one who was quick to dismiss utter nonsense.
Fast forward decades and every day I hear new arguments regarding why facilities that have experienced life-threatening infections should not be required to report this in a public venue. The most problematic argument is one that says an individual's infection is confidential medical information that prevents the facility from reporting statistical information, and thus an infection cannot be made public. I've seen arguments about federal or state record-keeping policies such as HIPPA privacy rules or Pennsylvania's confidentiality rules as the rationalization. I think I know what my mother would call this kind of argument.
Syracuse Law Professor Nina Kohn tackles the history of mishandled safeguards against infections in long-term care with an Op-Ed for The Hill. In "Addressing the Crisis in Long-Term Care Facilities," Professor Kohn points to specific actions at the federal level that have weakened, rather than strengthened, potential safeguards. She makes five specific recommendations, including prohibitions on staff working in more than one-long-term care facility, to reduce cross-contamination, and the need for family members and others to make it clear that we "are paying attention to what is happening." She reminds us: "Those who are health care agents for nursing home residents should not be afraid to request access to medical records, as federal law entitles them to do, if facilities are not forthcoming with information about the care being provided."
April 24, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, February 13, 2020
Public Charge and Immigrant Seniors
In January, the U.S. Supreme Court removed the nationwide temporary injunction that had prevented the Department of Homeland Security (DHS) public charge immigration rule from taking effect. This means that the public charge rule that DHS finalized last August can go into effect nationwide, except in Illinois, where it is blocked by a statewide injunction. DHS announced that it will begin implementing the final rule on February 24th.
The Supreme Court’s decision endangers the health and well-being of older immigrants and their families and cruelly impedes the path to citizenship and family unification. However, it is not a final decision and we must continue to fight to stop this harmful policy from becoming permanent. The multiple cases challenging the underlying legality of the final public charge rule will continue in the courts. DHS has appealed all the district court decisions that issued preliminary injunctions to the Second, Fourth, Seventh, and Ninth Circuits. DHS has also asked the U.S. Supreme Court to hear the case.
Justice in Aging and our partners have filed amicus briefs in the Second and Ninth Circuits to ask the court to affirm the district courts’ nationwide injunctions and to highlight the ways in which this rule unfairly targets older immigrants, their families, and caregivers. This webinar, Updates on Public Charge & Older Immigrants, will begin with an overview of the public charge test and how it applies to older adults, discuss the current state of litigation, and provide information on what advocates need to know about the rule’s implementation.
Who should participate:
Aging and legal advocates, advocates serving immigrant communities, community-based providers, and others wanting to learn more about how changes to the public charge test and implementation of the new regulations impact older immigrants.
Saturday, January 18, 2020
HHS has released the 2020 Poverty Level Guidelines.
2020 POVERTY GUIDELINES FOR THE48 CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA
Persons in family/household Poverty guideline
"For families/households with more than 8 persons, add $4,480 for each additional person."
Alaska and Hawaii are also available in the publication.
Friday, January 10, 2020
Kaiser Health News (KHN) recently published a story about a PACE program, Government-Funded Day Care Helps Keep Seniors Out Of Nursing Homes And Hospitals.
The services provided by PACE, a national program primarily funded by Medicaid and Medicare, are intended to keep people 55 and older who need nursing home levels of care at home as long as possible and out of the hospital.
The program is more important than ever as baby boomers age, its proponents say.
“The rapidly growing senior population in California and across the country will put enormous strain on our current fragmented, and often inefficient, health care delivery system,” said Tim Lash, president of Gary and Mary West PACE. California officials consider PACE an integral part of the state’s strategy to upgrade care for aging residents.
Consider the cost-savings to states with PACE programs, as well as the number of folks, typically dual eligibles, who participate. According to the story,
The National PACE Association said data it collected for 2019 shows seniors enrolled in PACE cost states 13% less on average than the cost of caring for them through other Medicaid-funded services, including nursing homes.
. . .
PACE participants who do not receive government medical benefits can pay out of their own pockets. At Gary and Mary West, the tab ranges from $7,000 to $10,000 a month, depending on the level of care.
Nationally, 50,000 enrollees participate in PACE programs at over 260 centers in 31 states. In California, PACE serves nearly 9,000 vulnerable seniors at 47 locations.
PACE provides the same services as under Medicare and Medicaid, and use of team from various disciplines to provide care. Patients often have chronic conditions and almost 2/3 of them have some level of cognitive difficulty.
Check it out.
PACE enrollees commonly have conditions such as vascular disease, diabetes, congestive heart failure, depression and bipolar disorder.
Tuesday, December 3, 2019
Two recent stories about Alzheimer's caught my eye, and I wanted to share them with you here. The day after Thanksgiving, the Today Show ran a story, Caregiver for Alzheimer's Patient Shares Family's Struggles. The caregiver wife tells the story of their lives and the financial impact when her husband, a lawyer, was diagnosed at age 61 with early onset Alzheimer's. The summary describes the story, "Millions of Americans selflessly care for loved ones with Alzheimer’s disease and one family is opening up about their struggles on TODAY. Many people are calling for a nationwide program for caregivers, reports special anchor Maria Shriver." Senator Amy Klobuchar appears in the story, as her dad has Alzheimer's. The story mentions pending bills in Congress, including the Alzheimer's Caregivers Support Act. The link to the 3:22 minute video is available here.
The second story, an opinion piece in the New York Times, The Unending Indignities of Alzheimer’s aired December 1, 2020. It highlights the obstacles family members face in trying to find the necessary care for the individual with Alzheimer's....
But while his family, and his physician, agree on the need for more advanced care, his health insurers do not. Medicare does not generally cover long-term nursing home care. Medicaid does, but only when it deems those services “medically necessary” — and that determination is made by insurance agents, not by the patient’s doctors. The state of New Jersey, where my parents live, recently switched to a managed care system for its elderly Medicaid recipients. Instead of paying directly for the care that this patient population needs, the state pays a fixed per-person amount to a string of private companies, who in turn manage the needs of patients like my father. On paper, these companies cover the full range of required offerings: nursing homes, assisted-living facilities and a suite of in-home support services. In practice, they do what most insurance companies seem to do: obfuscate and evade and force you to beg.
The author writes how the family is piecing together the care the best they can. She writes "[t]he real problem is not my father’s level of functionality; it’s the lack of available Medicaid beds and the absurdly high cost of any meaningful alternative. For example, there’s a lovely assisted-living facility just two miles from my parents’ apartment. But it costs $8,000 a month, on average, and does not accept my father’s insurance."
BTW, know someone who is a caregiver? Even though National Caregivers' Month (November) is behind us, thank a caregiver.
Monday, November 25, 2019
With Thanksgiving just two days away, I thought we should remember to give thanks to caregivers and to reflect on implications of what that means. This perspectives piece from the Washington Post from a few weeks ago is worth reading In My family faces an impossible choice: caring for our mom, or building our future the author writes from personal experience about her mother's need for care. Consider this information the author offers:
Sixty percent of people caring for adult relatives or friends also have full- or part-time jobs, according to the AARP’s Public Policy Institute. More than half of caregivers report a decline in exercise , poor diet and not seeing their doctor as needed. Chronic stress in caregivers has been shown to increase the risk of high blood pressure and heart disease . Compared with their peers, elderly individuals who serve as overburdened caregivers are 1.6 times more likely to die within four years. Only 13 percent of caregivers are between the ages of 18 and 29, according to Gallup-Healthways, so fewer studies exist on the effects on younger people. From my own experience, I can say that I routinely missed meals and sleep during my adolescence, and that I strove to hide my exhaustion, weight loss and social isolation from the people around me.
The author also writes about the financial impact that caregiving may have on the caregivers:
Caregiving fuels generational poverty, disproportionately affecting millennials and women who take on that role in their families. ... Millennial caregivers are more likely than previous generations to be passed over for promotions, forced to reduce their job responsibilities or fired, according to the TransAmerica Institute. Just a few years of caregiving early in life creates cumulative financial setbacks for women, making them less likely to have retirement savings and more likely to require government assistance. A 50-year-old woman earning $40,000 a year who leaves the workforce to care for a family member for five years loses 11 percent of her potential lifetime earnings ($256,753), according to the Center for American Progress. If she does the same at 25, she loses 20 percent of her lifetime earnings ($679,000). When women become caregivers, they also become 2.5 times more likely to live in poverty.
The author reflects on existing caregiving support programs, and mentions a new law from Washington that provides "a publicly funded long-term-care benefit... [of] $100 a day, with a lifetime cap of $36,500, to pay for services including caregiving, meal delivery and nursing home fees." The state expects to save an enormous amount of Medicaid money as a result of this new benefit.
Know any family caregivers? Right now, thank them for doing this and ask them what help they need.
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!
Wednesday, September 25, 2019
Kiplinger recently ran an article, How a Special Needs Trust for Your Child Can Fall Apart, which explains
Parents of disabled children must juggle a lot of responsibilities: work, bills and of course caregiving. But one ball they can’t afford to drop is special needs planning. One wrong move in this complicated ballet balancing benefits and services with asset rules could be disastrous. While every family’s situation is unique, the laws regulating special needs trusts are complex and can require some strategizing by families and trust companies — and if necessary, utilization of available government and nonprofit support programs.
The article reviews the laws, the requirements for a valid third party SNT and highlights one person's experiences, an attorney's advice for the person and advice for parents of children with special needs.
The key takeaway from this story is that it is essential that parents of a disabled child learn about federal, state, local community, charitable and other nonprofit support programs that may help. They must also discuss eligibility rules with relatives who may want to make gifts for the child, leave a share of their estate, include the child in a beneficiary designation for a retirement plan or life insurance or provide other types of in-kind support and maintenance.
Finally, setting up a special needs trust requires planning, legal and financial expertise, and the proper and compassionate administration of a professional trustee.
September 25, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 23, 2019
The GAO has issued another report on quality in nursing homes and ALFs. This report, Elder Abuse: Federal Requirements for Oversight in Nursing Homes and Assisted Living Facilities Differ
The Centers for Medicare & Medicaid Services (CMS) oversees the Medicare and Medicaid programs and is responsible for safeguarding the health and welfare of beneficiaries living in nursing homes and assisted living facilities. This includes safeguarding older residents from abuse—referred to as elder abuse. CMS delegates responsibility for overseeing this issue to state survey agencies, which are responsible for overseeing nursing homes. When assisted living facilities provide services to Medicaid beneficiaries, they are indirectly subject to CMS oversight through the agency’s oversight of state Medicaid agencies. GAO found that there are specific federal requirements for nursing homes and state survey agencies for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes. (See table below). For example, state survey agencies must prioritize reports of elder abuse in nursing homes based on CMS’s specified criteria and investigate within specific time frames. In contrast, there are no similar federal requirements for assisted living facilities—which are licensed and regulated by states. Instead, CMS requires state Medicaid agencies to develop policies to ensure the reporting and investigation of elder abuse in assisted living facilities. For example, CMS requires that state Medicaid agencies establish their own policies and standards for prioritizing reports when investigating incidents in assisted living facilities. Officials from the three selected states in GAO’s review said they apply certain federal nursing home requirements and investigation time frames for assisted living facilities when overseeing elder abuse.
Here's part of what the GAO did in investigating the issue:
To describe federal requirements for reporting, investigating, and notifying law enforcement about elder abuse in nursing homes and assisted living facilities, we reviewed relevant statutes and regulations and CMS guidance, including the State Operations Manual and HCBS waiver guidance and interviewed CMS officials regarding the agency’s oversight of the requirements. We selected a non-generalizable sample of three states—Connecticut, Oklahoma, and South Dakota—that have implemented HCBS waivers and vary in HCBS waiver program size and geography.10 In each state, we reviewed their waiver agreements and spoke with officials from the state survey agency, state Medicaid agency, and the state agency responsible for licensing assisted living facilities and investigating complaints.11 We also interviewed CMS officials, including regional office officials, about their oversight of state survey agencies and HCBS waivers in our selected states. We interviewed representatives from national stakeholder groups representing consumers, facilities, Medicaid directors, and investigators to obtain their perspectives on elder abuse in nursing homes and assisted living facilities. We also reviewed related audits issued by the HHS-OIG and state auditors between 2014 and 2018 related to reporting and investigating elder abuse in nursing homes and assisted living facilities and included them with a discussion of related GAO reports.
The full report is available here.
September 23, 2019 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)
Friday, August 2, 2019
I debated a bit about the title to this post, thinking I should call it-outliving your ability to pay for long-term care. But I think the interesting point to this post is not that potential but what one state has done to fund public long-term care. Pew Stateline ran this story, Getting Older, Going Broke: Who’s Going to Pay for Long-Term Care? Here's what is going on.
Washington state created the first public long-term care insurance plan, which will be funded through payroll taxes.
In 2017, Hawaii began providing up to $70 a day to residents who work while also taking care of elderly family members at home. Hawaii pays for the program, Kupuna Caregivers, out of its general budget.
The state estimates 154,000 residents are the unpaid caregivers of elderly family members. Kupuna Caregivers currently helps 134 Hawaiians pay for transportation, adult day care, personal care services and home-delivered meals.
Another Hawaii program, Kupuna Care, provides services to seniors in need of help with daily activities. This year, lawmakers passed a series of elder care bills, adding $11.2 million to the $9.7 million appropriated in the state’s budget.
A handful of other states, including Arizona, California, Michigan and Minnesota, also are exploring public long-term care options for people who otherwise might have to spend down their assets to qualify for Medicaid.
The article also notes that one member of the U.S. Congress has proposed a Medicare long term care benefit (would this be Part F?)
Here's a little more about the various states' actions
Minnesota is considering two private-sector options to address the problem. One would be to require insurers’ supplemental Medicare policies to include limited home chore benefits. That approach would cost beneficiaries about $8 a month... [and the] other would be to allow the sale of term life insurance policies that convert to a long-term care product once the beneficiary reaches retirement age....
In October, Michigan officials will begin studying what the state can do to help residents pay for long-term care. Illinois lawmakers this year also ordered a study to calculate how many seniors are likely to need long-term care; the possible financial impact on their families; the availability of caregivers and the tax implications of a state-run long-term care program.
The Arizona Senate passed a bill in April that would create a pilot program providing grants of up to $1,000 a year to reimburse caregivers taking care of disabled family members at home. The program would be paid for out of a $1.5 million a year fund included in the state budget....
And in California, where the population over 65 is projected to nearly double to 8.6 million in the next decade, lawmakers recently approved a $1 million study to weigh the costs of different long-term care plans.
. . .
Washington’s new state-operated plan will pay lifetime benefits of up to $36,500 to help people pay for in-home care (provided by a professional or a family member), assisted living, or a nursing home. It will be funded through a payroll tax of 0.58% for all workers. (Self-employed people can opt in.) But the state won’t begin making payroll deductions until 2022, and benefits won’t kick in until 2025.
Not every state is on this bandwagon, however. "Last year, Maine voters overwhelmingly rejected a ballot initiative that would have raised income taxes by 3.8% to pay for a long-term care plan." Interesting stuff.
Monday, July 8, 2019
Professor Tara Sklar emailed me to let me know of the publication of two new articles. Her first, Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention appears in 28 Annals of Health Law 195 (2019) and is also available on SSRN.
Here is the abstract
Over the last three decades, there has been a steady movement to increase access to aging in place as the preferred long-term care option across the country. Medicaid has largely led this effort through expansion of state waivers that provide Home and Community-Based Services (HCBS) as an alternative to nursing home care. HCBS include the provision of basic health services, personal care, and assistance with household tasks. At the time of this writing, seven states have explicitly tailored their waivers to support aging in place by offering HCBS solely for older adults, individuals aged 65 and over. However, there is growing concern about aging in place contributing to greater risk for social isolation, and with that increased exposure to elder abuse. Abuse, neglect, and unmet need are highly visible in an institutional setting and can be largely invisible in the home without preventative measures to safeguard against maltreatment. This article examines the seven states with Medicaid HCBS waivers that target older adults, over a 36-year period, starting with the first state in 1982 to 2018. We conducted qualitative analysis with each waiver to explore the presence of safeguards that address risk factors associated with elder abuse. We found three broad categories in caregiver selection, quality assurance, and the complaints process where there are notable variations. Drawing on these findings, we outline features where Medicaid HCBS waivers have the potential to mitigate risk of elder abuse to further support successful aging in place.
The second article, Elderly Gun Ownership and the Wave of State Red Flag Laws: An Unintended Consequence That Could Help Many will be published in the Elder Law Journal. It is currently available on SSRN here.
Here is the abstract
There is rising concern among health professionals and in legal circles to address gun ownership for older adults who display signs of cognitive decline, including dementia. However, elderly gun ownership remains underexamined, partly because incidents of gun violence among the elderly tend to occur in domestic settings and are much less visible than shootings in public areas. In contrast, there is widespread attention to curb mass gun violence through state legislation. Specifically, red flag laws, also known as Extreme Risk Protection Orders, have doubled in 2018 with thirteen states enacting red flag laws and over thirty states having introduced or planning to introduce this legislation. Although red flag laws were not intended to address elderly gun ownership, they uniquely apply where other gun control laws fall short, as red flag laws provide the legal process to temporarily remove access to guns for persons believed to be at an elevated risk of harming themselves or others.
This Article surveys the thirteen states that have enacted red flag laws and analyzes key legislative elements across these states. The state laws have notable variations, including authorized persons who can petition a court for a protection order, standard of proof requirements, and the length of time an order is in effect. These variations have implications for elderly gun owners and their families, particularly in how they relate to the climbing rates of cognitive decline, suicide in late life, and elder abuse. The current wave of red flag laws across the country offer an opportunity to provide greater awareness around elderly gun ownership and prevent crises from becoming tragedies.
I was particularly interested in this second piece, because we recently offered a webinar at Stetson for elder law attorneys on dementia and gun ownership. Information about the webinar and how to order an audio download are available here.
Congrats Professor Sklar and thanks for letting us know about your articles!
July 8, 2019 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (1)
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.
Thursday, March 7, 2019
The New York Times ran a story that notes that nursing homes are closing in rural America, leaving residents with few options. Nursing Homes are Closing Across Rural American, Scattering Residents highlights the dilemma for many in rural areas when the local nursing home closes. "More than 440 rural nursing homes have closed or merged over the last decade ... and each closure scattered patients like seeds in the wind. Instead of finding new care in their homes and communities, many end up at different nursing homes far from their families. ... In remote communities ... there are few choices for an aging population. Home health aides can be scarce and unaffordable to hire around the clock. The few senior-citizen apartments have waiting lists. Adult children have long since moved away to bigger cities." Think about the implications when the facility closes and there isn't another one near by. Not only might the resident suffer from transfer trauma, there are other implications. As the article notes, with distance comes the lack of ability for frequent visits, the time spent traveling to the new SNF, the inability to get to the new SNF quickly if a need arises and the vagaries of Mother Nature who may heap bad weather on the area, making it unsafe to travel. There are various reasons why nursing homes in rural communities are closing, including financial instability, Medicaid reimbursement rates, failure to meet the minimum health and safety standards and even the inability to hire staff.
Tuesday, January 15, 2019
Health & Human Services has posted information on their blog about how they are implementing the new hiring process for ALJs. Establishing a New Merit-Based Process for Appointing Administrative Law Judges at HHS explains the new process, the reasons for it, and when it became effective.
HHS is announcing how the department will implement a new ALJ selection and appointment process. The department’s ALJs work for the Office of Medicare Hearings and Appeals (101) and the Departmental Appeals Board (13). The DAB also has seven administrative appeals judges and five Departmental Appeals Board members, and the new ALJ selection and appointment process will apply to these “comparable officials” as well.
The new HHS ALJ selection and appointment process - PDF is effective immediately and is described on the websites of the OMHA and the DAB.
This process is described in the post as merit-based and does not require consultation with anyone outside of the process. The process is described in detail in a 4 page document from November, 2018, available here.
To understand the significance of this change, read my blog post from October 26, 2018 here.