Friday, October 26, 2018

Filial Friday: "Elternunterhalt" -- An Update on Germany's Approach to Filial Support Law

GermanyMy first close look at filial support law in Germany arose in 2015, when I met a German-born, naturalized U.S. citizen living in Pennsylvania who had received a series of demand letters from Germany authorities asking her to submit detailed financial information for the authorities to analyze in order to determine how much she would be compelled to pay towards care for her biological father in German.  Her father had become seriously ill and did not have inadequate financial resources of his own.  As I've come to learn, the name for Germany's applicable legal theory is elternunterhalt, which translates into English as "parental maintenance."   

Since 2015, I've heard from other adult children living in the U.S.,  but also in Canada and England, about additional cross-border claims originating in Germany.  They write in hopes of getting objective information and to share their own stories, which I appreciate. In some instances, such as the first case I saw in Pennsylvania, a statutory defense becomes relevant because of past "serious misconduct" on the part of  the indigent parent towards the child.  The misconduct has to be more than mere alienation or gaps in communication. Sometimes misconduct such as abuse or neglect is the very reason the child left Germany, searching for a safer place.  

Most of the adult children who reach out to me report they had never heard of elternunterhalt.  Their years of estrangement are often not just from the parent but from the country of their birth.  Even those who still have a relationship with the parent in Germany often learn of the potential support obligation only after their parent is admitted to a nursing home or other form of care.  They face unexpected demands for foreign payments, while they are often still looking to fund college for children or their own retirement needs.  

National German authorities began to mandate enforcement of elternunterhalt in 2010 in response to increasing public welfare costs for their "boomer" generation of aging citizens.  Enforcement seems to have been phased in slowly among the 16 states in the country.  I've read news stories from Germany about confusion and anger in entirely domestic cases.

A claim typically begins with letters from a social welfare agency in the area where the needy parent is living.  The first letters usually do not state the amount of any requested maintenance payment, but enclose forms that seek detailed, documented information about the "obligated child's" income and certain personal expenses or obligations (such as care for minor children). The authorities also seeks information about any marital property and for income for any spouse of "life partner." 

Whether or not the information is supplied, at some point in a wholly domestic German case the social welfare office may initiate a request for a specific amount of  back pay as well as current "maintenance." Such a request cannot be enforced unless the child either agrees to pay or a court of law decrees that payment must be made.  The latter requires a formal suit to be initiated by the agency and litigated in the family divisions of the German courts.  The amount of any compelled payment is determined by a host of factors, including the amount of the parent's pension, savings, and any long-term care insurance, and the child's own financial circumstances.

Cross border cases have been pursued within the EU with some reported results.  As for parental maintenance claims presented to U.S. children, enforceability is less clear.  According to some of the letters sent by German authorities, Germany takes the position that a German court ruling in a cross border elternunterhalt claim can be enforced in the United States under "international law."  The letters do not explain what legal authorities are the basis for such enforcement. 

The Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance was approved by the European Union, thereby affecting Germany, in 2014.  The treaty is mostly directed to the mechanics of international child support claims and is built on past international agreements on child support; however the treaty also provides that the Convention shall apply to any contracting state that has declared that it will extend the application "in whole or in part" to "any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons."  See Article 2(3). 

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October 26, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, International, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Tuesday, October 23, 2018

Justice Sandra Day O'Connor's Courage

My father and Sandra Day O'Connor happen to have many moments in common.  My father and Sandra both grew up in the deserts of Arizona.  They both practiced law in Phoenix.  Indeed, they even shared the same birthday, although my father was a few years older and passed away in 2017.  They socialized in the same circles and their spouses were friends with each other as well.  

Now they share one more event, and that is the personal experience of dementia.  My father, who had already stepped down as a federal judge at the district court level before he was diagnosed, never really accepted the diagnosis.  I think the disease sometimes robs the individual of understanding.  I admire Justice O'Connor and her family for the public announcement they made this week, disclosing her diagnosis of dementia, most likely of an Alzheimer's type.  

All best wishes, to the whole O'Connor family.   As one news story reminds us, there are an estimated 5.7 million Americans with Alzheimer's Disease and almost two-thirds of them are women.  

October 23, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Friday, September 28, 2018

Aging, Law and Society CRN Call for Papers in Advance of 2019 Annual Meeting in D.C.

The Aging, Law and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop as part of the Law and Society Association Annual Meeting scheduled for Washington D.C. from May 30 through June 2, 2019.

For this workshop, proposals for presentations should be submitted by October 22, 2018. 

This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.

The CRN encourages paper proposals on a broad range of issues related to law and aging.  For this event, organizers especially encourage proposals on the following topics:

  • The concept of dignity as it relates to aging
  • Interdisciplinary research on aging
  • Old age policy, and historical perspectives on old age policy
  • Sexual Intimacy in old age and the challenge of “consent” requirements
  • Compulsion in care provision
  • Disability perspectives on aging, and aging perspectives on disability
  • Feminist perspectives on aging
  • Approaches to elder law education

In addition to paper proposals, CRN also welcomes:

  • Volunteers to serve as panel discussants and as commentators on works-in-progress.
  • Ideas and proposals for themed panels, round-tables, or a session around a new book.

If you would like to present a paper as part of a the CRN’s programming, send a 100-250 word abstract, with your name, full contact information, and a paper title to Professor Nina Kohn at Syracuse Law, who, appropriately enough also now holds the title of "Associate Dean of Online Education!"  

September 28, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Statistics, Web/Tech, Webinars | Permalink | Comments (0)

Wednesday, September 19, 2018

Will Pennsylvania Pass Long-Awaited Adult-Guardianship Law Reforms Before End of 2017-18 Session? (Part 1)

Pa State CapitolFor the last few years, I've been quietly observing draft bills addressing needed reforms of Pennsylvania's adult guardianship system as they circulate in the Pennsylvania legislature.  Over the next few days, drawing upon a detailed update memorandum I prepared recently for interested parties, I will post reasons why the legislature can and, many would argue, should move forward in 2018. 

 

Today, let's begin with background.  First, here is the status of pending legislation and the timetable that could lead to passage:

 

Pennsylvania Senate Bill 884 (Printer’s No. 1147) presents an important opportunity to enact key reforms of Pennsylvania’s Guardianship Laws.  The bill is based on long-standing recommendations from the Pennsylvania Joint State Government Commission.  The Senate unanimously passed an earlier identical measure, S.B. 568, during the last legislative session (2015-16).  The current bill was approved and voted out of Senate committee in June 2018, but then tabled.  Although the schedule is tight, there is still time for action by both house before the end of the session in November.   If not fully passed and signed this year, a new bill must be introduced in the next legislative session.

 

The Pennsylvania Senate has scheduled session days before the November election on September 24, 25, and 26 and October 1, 2, 3, 15, 16, and 17. The Pennsylvania House of Representatives also has  scheduled session days for September 24, 25 and 25, and October 9, 10, 15, 16 and 17. If S.B. 884 is passed by the Senate in September, it appears there may be adequate opportunity for the House to move the legislation through the House Judiciary Committee and to the floor for final passage.

Second, let's review the steps taken most recently towards reform of existing Pennsylvania law:

In 2013-14, the Pennsylvania Supreme Court formed an Elder Law Task Force to study law-related matters relevant to the growing population of older persons in Pennsylvania. The team included members of all levels of courts in the Commonwealth, plus private attorneys, criminal law specialists, and perhaps most importantly, members of organizations who work directly with vulnerable adults, including but not limited to seniors. Guardianship reform quickly became a major focus of the study. I was a member of that Task Force. 

 

Statistics available to the Task Force in 2014 show that some 3,000 new guardianship petitions are filed with the Pennsylvania Courts each year, of which approximately 65% are for alleged incapacitated persons over the age of 60.  The number of new petitions can be expected to increase in the very near future. During the last six years, the cohort of Pennsylvania’s population between the ages 64 and 70 grew by a record 31.9%.  Soon, that aging cohort will reach the years of greatest vulnerability with the increased potential for age-related cognitive impairments or physical frailty. Appointment of a guardian is usually a choice of last resort, sometimes necessary because of an emergency illness or because individuals have delayed using other means, such as execution of a power of attorney or trust, to designate personally-chosen surrogate decision-makers.

 

When a determination is made that an individual is incapacitated (as defined by statute) and in need of certain assistance (again, as defined by law), courts have the duty and power to appoint a person or an entity as the “guardian.” Once appointed by a court, guardians can be given significant powers, such as the power to determine all health care treatment, to decide where the individual lives, and to allocate how money can be spent. While Pennsylvania law states a preference for “limited guardianships,” in reality, especially if no legal counsel is appointed to represent the individual to advocate for limited authority, it is more typical to see a guardian be given extensive powers over both the “person” and the “estate.”  

 

The Task Force began its work by undertaking a candid self-assessment of existing guardianship processes.  Based on its review of the history of guardianships in Pennsylvania, the Task Force issued detailed findings as part of its final Report released in November 2014, including the following:

  • Guardianship monitoring is weak, if it occurs at all.
  • Training is not mandated for professional or non-professional guardians.
  • Non-professional guardians are not adequately advised as to the duties and responsibilities of managing the affairs of an IP [incapacitated person].
  • The quality of guardianship services varies widely, placing our most vulnerable citizens at great risk.

 

The Pennsylvania Supreme Court identified a need for better information about the actions of appointed guardians; such information would be central to all recommended reforms. The Task Force recommended a new system enabling statewide accountability and consistent oversight.

 

Following the Task Force Report and Recommendations, and under the leadership of the Supreme Court, the Administrative Office of the Pennsylvania Courts began working on procedural reforms, beginning with creation of an Office of Elder Justice in the Courts.  The Courts developed a new, online Guardianship Tracking System, and in June 2018 the Supreme Court adopted new Orphans Court rules (14.1 through 14.14) that establish certain procedural safeguards for guardianships and require use of uniform, state-wide forms and reporting standards for all guardians.  These rules are scheduled to become fully effective by July 2019. 

    

Pursuant to a Judicial Administration Rule adopted August 31, 2018, the Supreme Court mandated a phased implementation of the tracking system, with workshops offering training for guardians on how to use the system to file inventory and annual reports. See Guardianship Tracking System Workshop

 

Not all recommended reforms, however, can be accomplished by the Courts adopting procedural rules.  Key substantive reforms require legislative action.  Senator Stewart Greenleaf, the chair of the Senate’s Judiciary Committee and a frequent sponsor of child and adult protective measures, introduced Senate Bill 884 (and its predecessor).  After many years of service and leadership in the Capitol, Senator Greenleaf is retiring this year; therefore, any necessary renewal of the legislation must attract new leadership.

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September 19, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, September 17, 2018

A Closer Look -- through the eyes of an experienced actuary -- At Long-Term Care Insurance

Jack Cumming, a California CCRC resident, frequently comments on Elder Law Prof Blog posts, bringing to bear his deep expertise in financial planning matters and his equally engaged commitment to historical accuracy in a wide variety of issues. Jack is a Fellow of the Society of Actuaries, and a Certified Aging Services Professional by Examination. During what I might call Jack’s “official career” as a professional actuary, he served as an independent consulting actuary for life and health insurance operations, and before that as a corporate officer and chief actuary for insurance companies. 

I first came to know Jack during what I’ll call his “second” career.  Jack helped many, including me, understand concerns about actuarial soundness issues in Continuing Care Retirement Communities. He came to his specialized expertise in CCRCs in a unique way, by moving to a California CCRC with his wife and discovering issues that can benefit from actuarial analysis. Over the last 12 years, Jack has advised CCRC residents and providers, as well as their organizations across the nation.

Jack recently commented on an item I posted on September 12, that described a particular history of poor actuarial decisions contributing to failure of a large Pennsylvania long-term care insurance company. In that post, I also reported on a new hybrid type of long-term care product, announced by New York Life Insurance Company.  Jack’s response was, as usual, so insightful that, with Jack’s permission, I am posting his commentary here, elaborated by him, as a blog post in its own right. 

Jack writes:

A number of thoughts come to mind when reading the recent Elder Law Prof Blog post on long term care insurance (LTCi).  The Elder Law post lists a perfect storm of what turned out to be foolhardy expectations.  Morbidity was underestimated, so were contract lapse rates and mortality.  Anticipated investment returns turned out to be overstated, medical and care costs escalated, and efforts to raise premiums without triggering shock lapses proved insufficient.  The result for the industry has been devastating, as anyone who has been close to LTCi, is well aware.  Fortunately, LTCi was a small part of the business of many insurers offering the product, so losses were absorbed.  Penn Treaty, an LTCi specialist company, was not so lucky.

 

Now, with the benefit of hindsight, it thus appears that there were significant and material optimistic misjudgments made in bringing LTCi to the market.  First, the data used for the initial pricing were not sufficiently vetted. Pricing actuaries used what data they could find but, for the most part, they failed to take into account the fact that the very existence of such insurance, then being introduced for the first time, would make it more likely that people would use the benefits.

 

Moreover, the opportunity for LTC providers to receive payments promoted the growth of the provider industry to deliver services that the insurance would cover. Thus, historical data from the time before there was insurance was misleading.   Since the products lacked incentives for policyholders, or those offering services to them, to restrain their use, it was predictable that people would seek to make the most of their coverage.  And they did and continue to do so.

 

Long Term Care Insurance developed originally to give the sales agents of the large life insurance companies a product that they could sell as part of a product portfolio centered on the sale of life insurance.  Such a portfolio, in addition to life and long term care insurance, often included disability income and health insurance.  Most of the pricing actuaries who were involved in the early development of LTCi products were life insurance specialists influenced by life insurance concepts. There’s little discretion or volunteerism about dying, so mortality data used in setting life insurance premiums tend to be relatively stable and predictable. The consequence is that underwriting and claims in large life insurance companies are principally administrative, e.g. for claims, confirm the death and send a check. More subjective risks, such as disability income (DI) insurance and LTCi, require active management over the duration of a claim by highly skilled executives experienced and specialized in those particular undertakings.

 

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September 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, September 11, 2018

How Lack of Transparency Harms "Senior Living" as an Industry

I'm preparing for an upcoming program in North Carolina and residents of senior living communities have sent me questions in advance.  The questions I've received are a reminder that "transparency" is a big issue.  As one resident candidly explained, "No population is more vulnerable than seniors living in managed care.... I consider myself among the vulnerable."   I've come to believe that lack of transparency impacts virtually all of the options for financing of senior living, including long-term care insurance and continuing care communities.  The problem is that many prospective clients do not know who they can trust, and many end up trusting no one.  They end up not making any advance plan.

For example, this week there is industry-sourced news that 33 facilities operated under the umbrella of Atrium Health and Senior Living, a New Jersey-based company, are going into receivership. These include 9 "senior living communities" and 23 "skilled nursing facilities" in Wisconsin, plus a skilled nursing facility in Michigan.  Atrium is also reported as operating 3 senior living communities and 9 skilled nursing facilities in New Jersey that "are not part of the receivership."  If you look at the company's website today, however, it won't be easy to find news that insolvency is already impacting this company's sites.  At least as of the time of my writing this blog post, there's only "good news" on the company's website.   

The public tends not to distinguish between different types of senior living options, at least not until individuals get fairly close to needing to make choices about moving out of their own homes.  I can easily imagine anyone who has done enough advance research to know about troubled companies to simply make a decision to steer clear of all facilities operated under a particular company name.  But, I suspect there is also a much larger population of prospective residents who view reports of troubled senior living companies or facilities as a reason to reject all of the options.  

Some providers will say that the problem is that "bad news" is over-reported.  I don't think that is actually true.  Rather, I think that there in most states is it hard to distinguish between financially sound or unsound options.  Certainly, I've known state regulators who decline to talk about troubled properties on a theory that bad news may make it harder for struggling operations to work out their problems as they cannot attract new customers.  Lack of transparency is argued as an explanation for giving operators a fair chance to recover, and recovery helps everyone.  

States, however, have unique opportunities to learn from their roles as receivers for troubled operations.  Wouldn't it be helpful for states to publish accurate information about what factors they have discovered that contribute to success or lack of financial success?  And if not the regulators, why not have the industry itself publish standards of financial health.

September 11, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, August 28, 2018

More on Family Caregivers

On several occasions I've written about the issues of caregivers (the shortage of family caregivers, the financial impact on care giving) so i was interested in this article by Kaiser Health News,    A Late-Life Surprise: Taking Care Of Frail, Aging Parents notes the failure of adult children to plan for their roles of caregivers-a role that may last a number of years and even cause the adult child to stop working. The KHN story focuses the profile of a "typical family caregiver, "“When we think of an adult child caring for a parent, what comes to mind is a woman in her late 40s or early 50s,” said Lynn Friss Feinberg, senior strategic policy adviser for AARP’s Public Policy Institute. “But it’s now common for people 20 years older than that to be caring for a parent in their 90s or older.”  The story cites a new study from "the Center for Retirement Research at Boston College [which] is the first to document how often this happens. It found that 10 percent of adults ages 60 to 69 whose parents are alive serve as caregivers, as do 12 percent of adults age 70 and older."

The study shows that "about 17 percent of adult children care for their parents at some point in their lives, and the likelihood of doing so rises with age ... because parents who’ve reached their 80s, 90s or higher are more likely to have chronic illnesses and related disabilities and to require assistance, said Alice Zulkarnain, co-author of the study."

So consider the implications, some of which I mentioned in the above parenthetical in the opening sentence.  The article lists the physical wear and tear "on older [caregiver] bodies, which are more vulnerable and less able to recover from physical strain" the potential for psychological stressors which can exacerbate any health issues the older caregiver may have, and social isolation of caregivers.  There's also the financial toll that may come, with "hard-earned savings at risk with no possibility of replacing them by re-entering the workforce."  

The article mentions a number of caregiver resources.  The report from the Center for Retirement Research is available here.

August 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Health Care/Long Term Care, Other, Statistics | Permalink

Friday, August 17, 2018

Weighing Costs & Need for LTC Insurance

I'm teaching a "short course" on long-term care insurance for my law students this semester.  Therefore I'm collecting as much current information on policies and costs as possible to share with my students.  Along that line, WTOP-News in the D.C. area recently posted a two part discussion on "Weighing the Costs and Need for Long Term Care Insurance."

From the first part of the series:  

Based on a 2016 Department of Health and Human Services study, about half of Americans turning 65 today will require long-term care services during their lifetimes (47 percent for men and 58 percent for women) with most needing assistance for an average of two years. About 12 percent will need between two and five years of long-term care, and nearly one in seven adults will require five or more years. . . . 

 

Now let’s turn to the potential costs of long-term care services which varies by state and type of care. Genworth, a provider of long-term care insurance, released its 2017 Cost of Care Survey stating the national average annual cost of a private room in a nursing home is $97,452 which is an increase of 5.5 percent from one year ago and a five-year annual inflation increase of 3.5 percent. Interestingly, the biggest increase in long-term care costs was for a home health aide, which increased 6 percent from 2016 to 2017, to $49,162 per year for 44 hours per week.

 

Summary of Genworth’s median annual 2017 long-term care costs are below:

 

Adult Day Care (5 days/week)              $18,200
Assisted Living (one-bedroom)        $45,000
Homemaker Services (44 hours/week)  $47,934
In-Home Health Aide (44 hours/week)  $49,192
Nursing Home (semi-private room)$85,775
Nursing Home (private room)          $97,455

 

Source: Genworth 2017 Cost of Care Study

The article also has a good summary of key features of LTCI, including inflation riders, elimination periods, maximum daily benefits vs. maximum benefit period, lifetime maximums, guarantees on renewability, nonforfeiture options and shared care.

The writer, Nina Mitchell, who is a advisor for The Colony Group, says that she plans to focus on "alternative long-term care solutions, such as hybrid policies that combine life insurance with long-term care insurance" in Part 2.  

August 17, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Monday, August 13, 2018

Elders in Bankruptcy On the Rise

A recent article, ‘Too little too late’: bankruptcy booms among older Americans published in The Business Times opens with a sobering thought: "[f]or a rapidly growing share of older Americans, traditional ideas about life in retirement are being upended by a dismal reality: bankruptcy." A new study featured in the article paints a foreboding picture for many elder Americans "'[t]he rate of people 65 and older filing for bankruptcy is three times what it was in 1991, the study found, and the same group accounts for a far greater share of all filers." What is causing this increase? According to the article, many factors, including changes in pension plans, health care out of pocket costs, declining incomes, to name a few.  It notes as well that elder Americans may have more challenges in recovering from financial setbacks than others.  The study is done by the Consumer Bankruptcy Project, which "is a long-running effort now led by Thorne; Lawless; Pamela Foohey, a law professor at Indiana University; and Katherine Porter, a law professor at the University of California, Irvine. The project — which is financed by their universities — collects and analyzes court records on a continuing basis and follows up with written questionnaires. ... Their latest study —which was posted online Sunday and has been submitted to an academic journal for peer review — is based on a sample of personal bankruptcy cases and questionnaires completed by 895 filers ages 19 to 92."

The paper by the study authors, Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society has been placed on SSRN.

The abstract offers this

The social safety net for older Americans has been shrinking for the past couple decades. The risks associated with aging, reduced income, and increased healthcare costs, have been off-loaded onto older individuals. At the same time, older Americans are increasingly likely to file consumer bankruptcy, and their representation among those in bankruptcy has never been higher. Using data from the Consumer Bankruptcy Project, we find more than a two-fold increase in the rate at which older Americans (age 65 and over) file for bankruptcy and an almost five-fold increase in the percentage of older persons in the U.S. bankruptcy system. The magnitude of growth in older Americans in bankruptcy is so large that the broader trend of an aging U.S. population can explain only a small portion of the effect. In our data, older Americans report they are struggling with increased financial risks, namely inadequate income and unmanageable costs of healthcare, as they try to deal with reductions to their social safety net. As a result of these increased financial burdens, the median senior bankruptcy filer enters bankruptcy with negative wealth of $17,390 as compared to more than $250,000 for their non-bankrupt peers. For an increasing number of older Americans, their golden years are fraught with economic risks, the result of which is often bankruptcy.

August 13, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, Retirement, Statistics | Permalink

Monday, July 30, 2018

SNF Staffing and Resident Care

Yesterday I blogged about a story in Kaiser Health News on the payroll reporting by SNFs that Medicare uses to determine staffing levels. KHN also has examined the data to see if there is a correlation between staffing and a resident's care. Mining A New Data Set To Pinpoint Critical Staffing Issues In Skilled Nursing Facilities notes that "[i]n April, Medicare began using [the payroll records, known as the payroll-based journal or PBJ] to rate staffing for more than 14,000 skilled nursing facilities (SNFs). The PBJ data gives a much better look at the how staffing relates to quality of care than the less precise — and too easy to inflate — staffing data Medicare had been using since 2008, which were based on two-week snapshots of staffing homes provided to inspectors. The data show staffing and occupancy on every day — an unprecedented degree of granularity that allows for new levels of inquiry."

The author offers

Low staffing is a root cause of many injuries in nursing homes. As I wrote in the article published in The New York Times based on the data: “When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.”

The author describes in detail the decisions that were made in crunching the data, using "two intersecting principles: to reflect residents’ lived experience as accurately as possible, and to be fair to the facilities. When in doubt, [the author] erred on the side of caution."

As an aside, the author notes the acronym for Payroll-Based Journal is PBJ!

 

July 30, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Statistics | Permalink

Friday, July 27, 2018

Cautious Optimism (and, perhaps, Controversy) Follows Results on New Alzheimer's Drug

I've learned to be skeptical about reports on new medications for Alzheimer's dementia.  The reports from drug companies come and go, often fading into obscurity.  

Nonetheless, results of a large clinical trial as reported at the Alzheimer's Association International Conference in Chicago this week seem to offer more promise.  From the New York Times' article:

The trial involved 856 patients from the United States, Europe and Japan with early symptoms of cognitive decline. They were diagnosed with either mild cognitive impairment or mild Alzheimer’s dementia, and all had significant accumulations of the amyloid protein that clumps into plaques in people with the disease, said Dr. Lynn Kramer, chief medical officer of Eisai, a Japan-based company that developed the drug, known as BAN2401, along with Biogen, based in Cambridge, Mass.

 

Many other drugs have managed to reduce amyloid levels but they did not ease memory decline or other cognitive difficulties. In the data presented Wednesday, the highest of the five doses of the new drug — an injection every two weeks of 10 milligrams per kilogram of a patient’s weight — both reduced amyloid levels and slowed cognitive decline when compared to patients who received placebo.

 

Of the 161 patients in the group taking the highest dose, 81 percent showed such significant drops in amyloid levels that they “converted from amyloid positive to amyloid negative,” Dr. Kramer said in an interview, meaning that the patients’ amyloid levels dropped from being considered high enough to correlate to dementia to a level below that dementia threshold.

The results discussed above apparently arise out of Phase II of the drug's testing.  An earlier report, in 2017, was more equivocal, as captured on the ALZforum website here.  

Further, as reported on Endpoints News, an "independent news organization reporting and analyzing the top global biotech and pharmaceutical R & D News of the day," a critical response is emerging since this week's public announcement:

But instead of cheering on evidence of success [for BAN2401], a large group of analysts last night zeroed in on a crucial change in the study that could have confounded the data presented — and now we have a brand new controversy to add to the literature of Alzheimer’s.

For more of the critique, read Eisai, Biogen Battered by Controversy over PhII Alzheimer's Study After Posting Positive Results.

July 27, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science, Statistics | Permalink | Comments (0)

Thursday, July 26, 2018

Pennsylvania Adopts Emeritus Status for Retired Attorneys to do Pro Bono Work

On May 9, 2018, the Pennsylvania Supreme Court approved Pennsylvania Rule of Disciplinary Enforcement 403, recognizing an emeritus status for attorneys who retire from the practice of law and seek to provide pro bono services to legal aid organizations. 

Emeritus programs serve as a pool of qualified volunteer attorneys to provide services to those in need. Emeritus attorneys can perform valuable roles in the community by bolstering legal aid and other nonprofit programs to help close the gap between the need for and the availability of free legal services.  

In order to transfer to emeritus status in Pennsylvania, an attorney must be on retired status. The retired attorney must complete six hours of continuing legal education within one year prior to the application date as a prerequisite to transferring to emeritus status. The emeritus applicant must verify that he or she is authorized solely to provide pro bono services, is not permitted to handle client funds, and is not permitted to ask for or receive compensation. At the time of application, the applicant must pay a registration fee of $35. 

Emeritus attorneys can renew their status on an annual basis, paying an annual fee, or can "transfer back" to retired status.  While on emeritus status, they are subject to annual continuing legal education requirements.  

Pennsylvania doesn't tend to rush to adopt "new" ideas, and thus it is relatively late among the states to approve such a program.  Emeritus programs have existed for quite some time.  For more on them, see the white paper on "Best Practices and Lessons Learned,"  authored for the ABA in 2010 by David Godfrey and Erica Wood.  See also the 2016 updated report by David Godfrey and April Faith-Slaker.  

 

July 26, 2018 in Consumer Information, Current Affairs, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Statistics | Permalink | Comments (0)

Monday, July 16, 2018

The Future For The Aging Demographic?

The National Academies Press has released Future Directions for the Demography of Aging.This volume contains the proceedings of a workshop and the overview explains

Almost 25 years have passed since the Demography of Aging (1994) was published by the National Research Council. Future Directions for the Demography of Aging is, in many ways, the successor to that original volume. The Division of Behavioral and Social Research at the National Institute on Aging (NIA) asked the National Academies of Sciences, Engineering, and Medicine to produce an authoritative guide to new directions in demography of aging. The papers published in this report were originally presented and discussed at a public workshop held in Washington, D.C., August 17-18, 2017.

The workshop discussion made evident that major new advances had been made in the last two decades, but also that new trends and research directions have emerged that call for innovative conceptual, design, and measurement approaches. The report reviews these recent trends and also discusses future directions for research on a range of topics that are central to current research in the demography of aging. Looking back over the past two decades of demography of aging research shows remarkable advances in our understanding of the health and well-being of the older population. Equally exciting is that this report sets the stage for the next two decades of innovative research–a period of rapid growth in the older American population.

Part 1 looks at trends in health and health disparities, Part 2 examines the implications of social and environmental factors, Part 3 covers families and intergenerational issues, Part 4 covers employment and retirement, Part 5 discusses cognitive issues and disability, Part 6 reviews global aging and Part 7 offers new approaches. You can purchase the softcover book here, download a free pdf of the book by clicking here or read the book online.

 

July 16, 2018 in Books, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, International, Retirement, Science, Statistics | Permalink | Comments (0)

PA Elder Law Institute Session on CCRCs and LPCs Will Discuss Pending Legislation and Indicators on Financial Performance

As I mentioned earlier, Pennsylvania's annual Elder Law Institute is July 19 and 20 in Harrisburg.  On the morning of the first day, I'm on a panel examining new issues in Continuing Care Retirement Communities (and Life Plan Communities), along with Linda Anderson, an elder law attorney, Kimber Latsha, who frequently represents health care and senior living providers including CCRCs, and  Dr. David Sarcone, a Dickinson College business professor with background in accounting and health care management.  

I'm especially looking forward to the discussion of Pennsylvania 2018 House Bill 2291, introduced in April of this year, but already moving from one committee, to its first of three considerations on the floor, to the Rules Committee, with amendments.  In other words, this bill seems to have "legs."  The sponsors of the bill are calling it an "Independent Senior Living Facility Privacy Act."  As with most catchy titles for pending legislation, the details are a bit more complicated.  In this instance the bill's lead sponsor is from a county where a single CCRC was investigated by the State Department of Human Services following a complaint that "staffing levels" were inadequate, leaving certain residents allegedly at risk.  The Department of Human Services issued an adverse order in May 2017 related to certain aspects at the facility and apparently that order is the subject of administrative appeals.  

The provider contests the order, and in written testimony submitted to the Pennsylvania House Committee on Aging and Older Adults Services, the CEO explained his company's position that the investigators were abusing their authority by entering independent living (IL) units, questioning IL residents, and thus failed to respect the individual autonomy of residents not actually living in "personal care" facilities, facilities that would be subject to HS authority:

"We feel that DHS is inappropriately applying the term 'premises' [from the personal care regulations] as the grounds and building on the same grounds, used for providing personal care services.  Each senior apartment is a 'separate individual leasehold,' where an inhabitant, the lessee of the apartment leases an apartment and is afforded the enjoyment and freedom to engage family and third party services."

At the core of this issue is a question about expectations of the public and the residents about care in "independent living" units of a licensed "continuing care community." (Pennsylvania has at least one pending wrongful death suit involving an entirely different CCRC, where one issue is whether the CCRC's alleged awareness of an IL resident's worsening dementia was ignored.  She allegedly died of complications of exposure after wandering and being locked out of her IL apartment complex on a cold night.) 

The proposed legislation would exclude "independent senior living facilities" (including public housing outside of the CCRC context) from future state Human Services investigations, including investigations by the Long-Term Care Ombudsman. 

I expect we will also be talking about financial performance numbers of both for-profit and nonprofit CCRCs -- especially as some of the numbers suggest that some operations both sides of the industry "profit" line may be struggling to "live within their means."  

In other words, there will be some especially "hot" topics for discussion.  

July 16, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, July 13, 2018

More on California's Aid-in-Dying Law

We have blogged a couple of times at least about California's Aid-in-Dying law, most recently about the judge declaring the law unconstitutional. While the constitutionality issue makes its way through the court system, California in late June released statistics to show how many folks had previously availed themselves of the law. The New York Times reported that Nearly 400 People Used California Assisted Death Law in 2017.

Here are some statistics from the article:

374 terminally ill people took drugs to end their lives in 2017, the first full year after a law made the option legal....

577 people received aid-in-dying drugs last year, but not everyone used them....

Of the 374 who died, about 90 percent were more than 60 years old, about 95 percent were insured and about 83 percent were receiving hospice or similar care. The median age was 74....

Most of the recipients were college educated and receiving hospice or similar care....

The 374 people who died include 11 people who were prescribed drugs in 2016 but died last year.

Another 86 people were prescribed the lethal drugs but died without taking them, while the fate of the remaining 128 people wasn't reported.

July 13, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, July 11, 2018

How "Liveable" is Your Community?

AARP has named the top 10 cities with populations  500,000 and over that are the most "liveable." I'm not living in one of the top ten-are you? Nor am I living in one of the top 10 mid-sized (100,000-499,999) "liveable" communities. Nope, not living in one of the top 10 small (25,000-99,999) "liveable" communities either. 

How does AARP determine if a community meets their liveability scale?  The website explains that "AARP developed the Livability Index, a ground-breaking tool—now in its third year—that uses more than 50 national data sources and 60 indicators spread across seven categories to jump-start community conversations about livability and encourage action by consumers and policymakers alike.It turns out that many of the characteristics that make a community “livable” are the same across all ages: safety and security, affordable and appropriate housing and transportation, and the ability to live near family and friends who can be relied upon." The index looks at housing, environment, health, community engagement, employment, neighborhoods and transportation. How does your city fare?

BTW, this could be a really good exercise for students to do in their elder law course. The fall semester will be here before we know it!

July 11, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Other, Statistics | Permalink | Comments (0)

Thursday, June 28, 2018

New Infographic on Dementia Trends

The Population Reference Bureau (PRB) has  published a new infographic on trends in dementia in the US. The infographic explains

The share of older Americans with dementia is decreasing, but the total number will rise as the large baby boomer population ages and more people live longer. While education gives older adults an edge, reducing their dementia risk, racial and socioeconomic disparities in dementia are large and persistent. The most effective way to reduce dementia prevalence in the future is to postpone its onset through preventive strategies and treatments.

This infographic summarizes the latest demographic research on dementia trends, published in a 2018 special supplement to Journals of Gerontology.[1] It distills key findings from the supplement’s seven articles for policymakers and public health professionals as they plan for an aging population.

The infographic addresses age, education, gaps, costs and prevention. Check it out!

June 28, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Friday, June 22, 2018

Where the Elders Are

CityLab recently ran a story about populations and particularly, where elders are residing. Mapping America’s Aging Population explains that "Demographers and geographers have watched as this aging cohort transformed the U.S., from young children in the 1950s and 1960s to senior citizens today. This graying of America has left a distinctive geographical fingerprint."

Want to guess where elders are living?  If you started with the sunbelt you would be somewhat correct. "Unsurprisingly, popular retirement states like Florida and Arizona have high concentrations of older Americans... What may be more of a surprise is the broad swaths of elderly running through the Midwest and the Appalachians. These regions have aged significantly, as many younger residents headed toward the coasts."  The demographic maps provide good pictorial representations of the locations where elders are living.

The article looks at births and deaths and relocation. Interestingly, "[p]eople are less likely to move as they age. In 1968, parents of the baby boomers were in their highly mobile, young adult years, but today boomers are older and more apt to stay where they are."

The Boomers seem to be clustering in certain geographic areas:

Baby boomers have contributed to this trend. Fifty years ago, this group was spread out evenly among the rest of the general population. By 1990, they had became more bicoastal and were concentrated in a small number of dynamic, growing metropolitan areas.

Between 1990 and 2000, a substantial number of boomers flocked from these metro areas to amenity-laden retirement and pre-retirement regions, like the Pacific Northwest, Florida, northern Wisconsin and Michigan, as well as some areas of the South, like the Ozark region and the Western Carolinas.

These areas have continued to grow, while baby boomers moved away in their greatest numbers from the southern Great Plains and the area along the Mississippi River Valley.

Thanks to my colleague and dear friend, Mark Bauer, for sending me the article.

 

 

June 22, 2018 in Consumer Information, Current Affairs, Housing, Other, Property Management, Retirement, Statistics | Permalink | Comments (0)

Monday, June 11, 2018

AARP's 2018 Where We Live: Order Now!

AARP's 3rd edition (2018) of Where We Live: Communities for All Ages is available for pre-order now.  You can request one hard copy free, following these instructions

1. Email Fulfillment@AARP.org with the subject line: Where We Live 2018

2. In the email body, include:

  • your name
  • street address 
  • town/city, state, zip code
  • publication number D20439

Bulk orders may also be possible. If you prefer to read the report online, a link to the pdf of the report will be available on June 13, 2018, here.

June 11, 2018 in Books, Consumer Information, Current Affairs, Housing, Statistics | Permalink | Comments (0)

Aging: "The One Shark We Cannot Escape"

My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of  GPSolo,  the ABA journal for solo, small firm, and general practitioners.  Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns.  I enjoyed her use of classic lines from the movie Jaws.  

My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
 
 
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
 
 
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
 
 
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
 
The full article is currently behind a paywall on the ABA website. For more of Linda's wise words, it is worth tracking down a copy of An Elder Care Lawyer's Story.  It is in Volume Issue No. 2 (March/April, 2018) of GPSolo.  It is also available on Westlaw, although, of course, that's another paywall.   

 

June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)