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)
Wednesday, April 27, 2022
On April 11, CMS announced it was proposing a decrease in Medicare funding to SNFs, according to an article in Skilled Nursing News. CMS’s Proposed $320M Decrease in Nursing Home Medicare Funding Could Be ‘Ruinous’ for Struggling Operators
The federal government on Monday proposed its payment rate update to nursing home reimbursements for fiscal 2023, which includes a 4.6% cut related to the Patient-Driven Payment Model.
That cut from the Centers for Medicare & Medicaid Services (CMS) amounts to a total loss of $320 million, according to the agency.
CMS – in its SNF Prospective Payment System proposed rule – recommended a 3.9%, or $1.4 billion, payment increase to the industry. The government agency arrived at that number by raising the market basket rate for skilled nursing facilities by 2.8%, a 1.5 percentage point forecast error adjustment and a 0.4-percentage-point multifactor productivity adjustment.
The article goes into detail about the CMS position, what is driving it and the impact it would have on the industry. The CMS release about their proposal and the comment period is available here: Fiscal Year (FY) 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule (CMS 1765-P).
The Skilled Nursing News article also notes that CMS is looking for feedback on the issue of staffing standards. For more info on the staffing standards, see the CMS news release, HHS Takes Actions to Promote Safety and Quality in Nursing Homes.
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.
Thursday, February 24, 2022
I found helpful this recent New York Times article, When You’re Tiptoeing Into Retirement, Take These Key Steps. I thought the setup to the article was spot-on "For many, getting to retirement age is not a simple matter of giving two weeks’ notice. You may want to extend a career or wind down work life or a business. If you’re able, you may want to keep working until you are 70 (and beyond), when you will receive the largest possible Social Security payment. These in-betweeners are slow-walk planning to arrive at the moment when they are not working anymore. What’s involved is a delicate jigsaw puzzle of decisions, nest egg bolstering and financial calculations. This transitory time also presents a meaningful time for reflection and short-term planning." The article discusses "issues to consider' including the timing of taking Social Security Retirement (and some links to companies you can hire to help you with the decision), phased retirement, financing retirement, including tax planning, and whether to create a plan yourself, or with a professional. "More important, one of your key questions should be, “What do I truly want to do and how do I get there?” Whether you are envisioning partial or full retirement, it helps to have some specific goals."
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!
Monday, January 31, 2022
This case has been going on for over a decade!
The Jan. 25 ruling, which came in response to a 2011 class-action lawsuit eventually joined by 14 beneficiaries against the Department of Health and Human Services, will guarantee patients the right to appeal to Medicare for nursing home coverage if they were admitted to a hospital as an inpatient but were switched to observation care, an outpatient service.
The court’s decision applies only to people with traditional Medicare whose status was changed from inpatient to observation. A hospital services review team can make this change during or after a patient’s stay.
The full opinion is available here.
P.S. I'm on the board of CMA and they do great work!
Wednesday, January 12, 2022
Last fall I had blogged about the significant increase in the Medicare Part B premiums for 2022. Part of the increase was due to the cost of the new Alzheimer's drug. There have been developments since the Part B premium was announced. Here are a couple. First, the AP reported on January 10, 2022 that Medicare told to reassess premium hike for Alzheimer's drug.
" U.S. health secretary Xavier Becerra on Monday ordered Medicare to reassess a big premium increase facing millions of enrollees this year, attributed in large part to a pricey new Alzheimer’s drug with questionable benefits. [This] came days after drugmaker Biogen slashed the price [about in half]." Based on that cut, the Secretary determined that a review of the 2022 premium was appropriate. This is no guarantee that the Part B premium will be reduced, but the article notes that beneficiaries will [not] see [an] immediate change to their costs, but Monday’s move could open the way for a reduction later in the year. The Department of Health and Human Services says it is reaching out to the Social Security Administration, which collects the premium, to examine options."
Second, Kaiser Health News included summaries of stories from several news outlets regarding the decision by CMS regarding coverage of the new Alzheimer's drug Medicare To Limit Coverage Of Contentious And Costly Alzheimer’s Drug. For example, the AP story, Medicare limits coverage of $28,000-a-year Alzheimer’s drug, "The initial determination from the Centers for Medicare and Medicaid Services means that for Medicare to pay, patients taking Biogen’s Aduhelm medication will have to be part of clinical trials to assess the drug’s effectiveness in slowing the progression of early-stage dementia as well as its safety. Medicare’s national coverage determination would become final by April 11, following a public comment period and further evaluation by the agency." The drug manufacturer disagrees with the decision.
So what will be the impact of the price drop, the reassessment and the coverage decision? Stay tuned.
Wednesday, December 22, 2021
Yesterday the New York Times ran what I consider to be an important article about Medicare costs to beneficiaries. How to Cope With Medicare’s Rising Costs focuses on how beneficiaries can plan for the rising costs of Medicare. There was a lot of excitement over the 2022 SSA COLA increase, rightfully so, but that excitement would quickly evaporate when CMS announced the 2022 Medicare increases, especially the Part B premium, which is going up 14.55%. Initially it was announced in part that the increase was due to the anticipated cost of the newly approved Alzheimer's drug. However, this week, the article notes, the manufacturer dropped the price of the drug. But will there be a commensurate drop in the Part B premium?
The Part B premium is not the only increase in out of pocket costs. The article discusses the deductible as well as the Part D costs and how those increases, especially for drugs, affect beneficiaries' ability to access health care and take their meds. Remember that one provision of the Build Back Better is to allow CMS to negotiate some drug prices and cap Part D out-of-pocket costs, as well as that for insulin.
The article contains a section on how to budget for these increases. In addition to including plan choices, the article offers several more suggestions, such as a health savings account, delaying Social Security, and annually reviewing plan choices during each fall's open enrollment.
Thursday, December 16, 2021
You may have already read about this, but just in case.... Kaiser Health News has reported about changes to California's aid-in-dying law. New California Law Eases Aid-in-Dying Process explains that "in October, Gov. Gavin Newsom signed a revised version of the law, extending it to January 2031 and loosening some restrictions in the 2015 version that proponents say have become barriers to dying people who wish to avail themselves of the law." This change becomes effective in 2022.
With the original law, as an example, "patients who want to die must make two oral requests for the medications at least 15 days apart. They also must request the drugs in writing, and two doctors must agree the patients are legally eligible. After receiving the medications, patients must confirm their intention to die by signing a form 48 hours before ingesting them."
Now, with the changes, "the revised law reduces the 15-day waiting period to just two days and eliminates the final attestation [and] requires health care facilities to post their aid-in-dying policies online. Doctors who decline to prescribe the drugs — whether on principle or because they don’t feel qualified — are obliged to document the patient’s request and transfer the record to any other doctor the patient designates."
The article offers poignant examples, provides statistics, and discusses the approach of insurance companies for coverage of the prescription ("[M]ore than 60% of those who take the drugs are on Medicare, which does not cover them. Effective life-ending drug combinations are available for as little as $400.")
December 16, 2021 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
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)
Tuesday, December 7, 2021
Following my post urging new approaches to "waiting room" protocols, I received several direct replies. I think I've touched a nerve. First, the fact that the replies were sent directly to my email address probably reflects a little "wait time" problem for the Typepad Blog Platform itself. More than one reader commented on the difficulty of logging in to submit their own responses to a Blog post. My apologies!
But, I'm always happy to read commentary, no matter the means of communication. Some people wrote to report innovations in their own communities. Among the most interesting have been people who reported "pop-up clinics," especially on the outskirts of larger cities or even more rural areas. These clinics are a direct response to COVID-19 pressures on hospitals -- and they make a lot of sense. Other suggestions have included the option of "beepers" being provided to waiting patients so that they have the option of moving outside the crowded waiting room without fear of losing their spot. If restaurants can do this, why can't hospitals!
I also heard from two friends who are physicians. Both reported their own frustrations. They can end up facing patients and family members who are worn out or angry by the time they reach the person who can diagnose and offer treatment. One doctor speculated on the trend of ordering diagnostic tests such as CT scans before the doctor's first communication with the patient, echoing some patients' suspicion that the tests increase the cost of the visit, and the question is necessity.
A newspaper that serves a nearby Pennsylvania county (York) also carried a story over the weekend reporting on average wait times at various regional hospitals -- and one large, high volume hospital was reporting waits of almost 5 hours. Could ERs publish this kind of information at the door, so that families understand that challenges ahead, and can consider options before checking in? Heck, Departments of Motor Vehicles routinely post waiting times!
And it turns out that a Medicare.gov Care Compare website, in addition to offering comparative information on nursing homes, also offers information about other health care providers including hospital emergency rooms. Evaluative items related to "quality" include reports on "timely & effective care, complications & deaths, unplanned hospital visits, psychiatric units services, and payment & value of care." Under the first category, when I searched a local hospital's data, I learned that Medicare considered this hospital to have a "medium" volume of patients, but the average ER wait time of 207 minutes was similar to much larger volume hospitals. I don't think anyone is likely to access this website while headed to the emergency room, but perhaps the information does facilitate better advance planning before an emergency to identify nearby options for the future.
Wednesday, November 17, 2021
Remember last month when SSA announced the 2022 COLA-maybe not groundbreaking, but a nice "raise" for beneficiaries. Well, what SSA gave, Medicare takes away, with their announcement regarding the 2022 premium. Alzheimer's drug cited as Medicare premium jumps by $21.60 explains that
Medicare's “Part B” outpatient premium will jump by $21.60 a month in 2022, one of the largest increases ever. Officials said Friday a new Alzheimer's drug is responsible for about half of that.
The increase guarantees that health care will gobble up a big chunk of the recently announced Social Security cost-of-living allowance, a boost that had worked out to $92 a month for the average retired worker, intended to help cover rising prices for gas and food that are pinching seniors.
The implications reach beyond the cost of the premiums for 2022. "The new Part B premium will be $170.10 a month for 2022, officials said. The jump of $21.60 is the biggest increase ever in dollar terms, although not percentage-wise. As recently as August, the Medicare Trustees’ report had projected a smaller increase of $10 from the current $148.50."
Many thanks to my dear friend, Professor Feeley, for sending me the link to the article.
Here's one thought about it. "The increase in the Part B premium for 2022 is continued evidence that rising drug costs threaten the affordability and sustainability of the Medicare program," said Medicare chief Chiquita Brooks-LaSure in a statement. Officials said the other half of the premium increase is due to the natural growth of the program and adjustments made by Congress last year as the coronavirus pandemic hit."
Wednesday, September 22, 2021
Professor Richard Kaplan recently published a new article comparing Medicare for All to current Medicare. Just a note-I make a point of reading anything Professor Kaplan publishes (just look at his download stats on SSRN, and you will see that many others share my opinion). He's a true elder law scholar and ROCK STAR. Here is the abstract for Medicare for All vs. Medicare As Is: Eight Key Differences.
This article examines eight principal differences between the Medicare-for-All proposal championed by Senator Sanders, inter alia, and the Medicare program as it actually exists. In doing so, the article shows how the current program bears little resemblance to what the Medicare-for-All proponents are trying to enact. Those key differences include: (1) Medicare is a real program, (2) Medicare is only health care financing, (3) Medicare is an earned entitlement, (4) Medicare is not a simple program, (5)Medicare has a significant co-insurance component, (6) Medicare’s financing relies on non-Medicare enrollees, (7) Medicare’s coverage of long-term care is minimal, and (8) Medicare can accommodate expansion without major disruption. The article concludes that the differences between Medicare as it is and Medicare-for-All are too significant to elide and may make the effort to enact Medicare-for All less likely to succeed.
Professor Kaplan, thanks for publishing in Stetson Law's Journal of Aging, Law, & Policy.
Wednesday, September 15, 2021
We know they come out every year. This year is no exception. They are out! What do we learn from them? I'll give you the highlights here (those of you who have looked at the reports before know they are long and detailed....)
The Medicare Trustees' Report, released August 31, 2021, is available here. The introduction explains the impact of COVID, and COVID vaccines, on Medicare, but not "Aduhelm, the Alzheimer’s disease drug that has been recently approved." The introduction also references potential future scientific advances and how that would be factored into projections. The one thing everyone wants to know from the Trustees Annual Report is what is the fiscal health of Medicare? "The estimated depletion date for the HI trust fund is 2026, the same as in last year’s report. As in past years, the Trustees have determined that the fund is not adequately financed over the next 10 years. HI income is projected to be lower than last year’s estimates due to lower payroll taxes." If you don't have time to peruse the entire report, read the introduction. It's very interesting!
Here's an excerpt from the conclusion:
The Trustees project that HI tax income and other dedicated revenues will fall short of HI expenditures in all future years. The HI trust fund does not meet either the Trustees’ test of short-range financial adequacy or their test of long-range close actuarial balance.
The Part B and Part D accounts in the SMI trust fund are expected to be adequately financed because income from premiums and general revenue are reset each year to cover expected costs. Such financing, however, would have to increase faster than the economy to cover expected expenditure growth.
The financial projections in this report indicate a need for substantial changes to address Medicare’s financial challenges. The sooner solutions are enacted, the more flexible and gradual they can be. The early introduction of reforms increases the time available for affected individuals and organizations—including health care providers, beneficiaries, and taxpayers—to adjust their expectations and behavior. The Trustees recommend that Congress and the executive branch work closely together with a sense of urgency to address these challenges.
The 2021 Social Security Trustees' Report is available through this page.
According to a summary provided by the SSA & Medicare Trustees, "Based on our best estimates, the 2021 reports show:"
• The Old-Age and Survivors Insurance (OASI) Trust Fund, which pays retirement and survivors benefits, will be able to pay scheduled benefits on a timely basis until 2033, one year earlier than reported last year. At that time, the fund's reserves will become depleted and continuing tax income will be sufficient to pay 76 percent of scheduled benefits.
• The Disability Insurance (DI) Trust Fund, which pays disability benefits, will be able to pay scheduled benefits until 2057, 8 years earlier than in last year's report. At that time, the fund's reserves will become depleted and continuing tax income will be sufficient to pay 91 percent of scheduled benefits.
Monday, August 30, 2021
Here's an interesting (I don't want to say hopeful) idea. According to the New York Times article, Five Decades Later, Medicare Might Cover Dental Care it's a possibility that could become a reality if the odds can be overcome. "Tens of millions of older Americans who cannot afford dental care — with severe consequences for their overall health, what they eat and even when they smile — may soon get help as Democrats maneuver to add dental benefits to Medicare for the first time in its history....The proposal, part of the large budget bill moving through Congress, would be among the largest changes to Medicare since its creation in 1965 but would require overcoming resistance from dentists themselves, who are worried that it would pay them too little."
We know the implications on overall health that come from dental issues. The article cites the statistic that 20% of older Americans have lost their teeth and dental issues can exacerbate health issues that are covered by Medicare. Given that Medicare covers many preventive services, is it such a stretch to see the value of adding dental coverage? But with all things political, passage is an uphill battle. "On Capitol Hill, the proposal to add a Medicare dental benefit has near-universal support among Democrats, and many health industry and consumer groups back it, too... With the Democrats’ large policy ambitions but narrow majority, its passage is not assured."
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.
Wednesday, August 18, 2021
The Biden Administration announced today that it will push for federal regulations to mandate employee vaccinations for COVID-19 for employees of "nursing homes," making the vaccinations a condition for nursing homes to continue receiving Medicare and Medicaid funding. It will be interesting -- or perhaps frustrating -- to see how long that rulemaking process will take! The new regulations "would apply to over 15,000 nursing home facilities, which employ approximately 1.3 million workers and serve approximately 16 million nursing home residents."
Some sources suggest to date that "only about one-quarter of nursing homes had at least 75 percent of staff vaccinated."
The announcement about nursing homes was combined with other announcements related to COVID-17 protections.
My motto for the last 18 months has been "nothing is simple."
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."
Thursday, August 12, 2021
Kaiser Health News published a story, Why Doesn’t Medicare Cover Services So Many Seniors Need? Noting that eye glasses, dentures, and hearing aids aren't covered under original Medicare, the story reports that "On Monday, Senate Majority Leader Chuck Schumer released an outline of a coming budget bill that includes a directive to the Senate Finance Committee to expand Medicare “to include dental, vision, hearing benefits.” The catch — all the Democrats in the Senate and almost all in the House will have to agree on the entire budget bill for it to become law." But why haven't those been added to Medicare before now? "[I]n the 56 years since Medicare became law, only a few benefits have been added to the package, which was created to emulate a 1965 Blue Cross/Blue Shield plan. During the 1980s and ’90s some preventive care was added, like pneumonia vaccines and mammograms. Republicans spearheaded the addition of prescription drug coverage in 2003, when they controlled both Congress and the White House. But they decided to make that coverage separate from the program’s traditional benefit package." The article details the hurdles in expanding coverage and asks, why now and why these items are proposed to be added. The article suggests a couple of reasons, both of which involve politics to some degree. Hopefully the winner here will be the Medicare beneficiaries.
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.