Tuesday, February 20, 2018

Massachusetts High Court Reminds Reverse Mortgage Holders- Foreclosure IS possible; Rules that Lenders Don't Have to Spell Out Foreclosure Risk to Consumers

The Supreme Judicial Court of Massachusetts ruled in favor of a reverse mortgage lender in a foreclosure case earlier this month, finding that mortgagees don’t have to explicitly spell out their legal right to foreclose in their paperwork.

The case involved James B. Nutter Company and three reverse mortgage borrowers, all of whom secured Home Equity Conversion Mortgages in 2007 and 2008. Within the span of a few years, two had died and the third became too ill to remain in the home; J.B. Nutter then moved to foreclose by bringing actions against the borrowers or their executors in local land court.

But the case was delayed due to an objection over the company’s ability to foreclose on homes under state law. In Massachusetts, the Supreme Judicial Court (SJC) wrote in its opinion, foreclosures can proceed without a judge’s confirmation as long as the mortgage itself gives the lender “the power of sale” in such situations.

The problem stemmed from some imprecise language in J.B. Nutter’s standard reverse mortgage paperwork. The company informed borrowers that it “may invoke the power of sale and other remedies permitted by applicable law … At this sale, Lender or another person may acquire the Property. This is known as ‘foreclosure and sale.’ In any lawsuit for foreclosure and sale, Lender will have the right to collect all costs allowed by law.”

The disclosure, though left unresolved issues.  The form language  fails to directly refer to the “statutory power of sale,” which was insufficient to justify the lender’s power to foreclose after the death of a borrower or his departure from the property.

But despite the lack of legal specificity, the SJC found that “no reasonable borrower” could assume that a reverse mortgage lender did not have the power to sell his or her property in the event of a foreclosure.

“It matters that this is a contract for a reverse mortgage, rather than a traditional mortgage, where the borrower makes no monthly payments of principal or interest, where the lender cannot hold the borrower personally liable for the debt, and where the lender’s only recourse on default is to obtain repayment through a foreclosure sale,” the court wrote in its opinion.

“Without a power of sale, the only way that a lender can recover the principal of the loan, not to mention interest and fees, is through foreclosure by entry — a process that would take three years — or foreclosure by action, ‘a method rarely used’ in Massachusetts.”

The court also noted that J.B. Nutter would still have to abide by all other rules regarding foreclosures in the state.

Interestingly, the court had some words of praise for the reverse mortgage product in general — while also citing a controversial report from the Consumer Financial Protection Bureau that advised consumers against taking out the loans to delay Social Security payments.

“For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes,” the court wrote by means of introduction.

Like many financial products and strategies, a reverse mortgage has a specific purpose, and specific circumstances justify its use.  Unfortunately, like most financial products, consumers do not always understand fully these purposes or circumstances and find themselves suffering disadvantage or harm when they are misused. The consequences can be devastating

As discussed preciously on this blog, these financial devises can be particularly troubling for elderly couples that do not plan carefully.  See the articles posted here and here, for example. 

Sunday, February 18, 2018

New Budget Deal Reinstates Protections for Personal Injury Awards from State Claims

The budget deal signed into law by President Trump on February 9, 2018 permanently and retroactively restored protection of personal injury recoveries from State claims.  Under the new law, States can only make claims against the medical expense reimbursement portion of personal injury judgments and settlements, protecting the rest of such recoveries, such as the portions representing compensation for pain and suffering from such claims.
The new law represents a permanent and retroactive repeal of the law that overturned the Supreme Court decision in Arkansas Department of Health and Human Services, et al. v. Ahlborn 547 U.S. 268 (2006).  Ahlborn had been overturned by Section 202 of the Bipartisan Budget Act of 2013 (BBA), which expanded states’ access to entire personal injury settlements and awards to recoup Medicaid costs spent on a beneficiary’s behalf.  Originally set to take effect on October 1, 2014, it was twice delayed before finally coming into force late in 2017.  The current bill eliminates the 2013 language that nullified Ahlborn.
In 2006 the Supreme Court issued its Ahlborn decision, finding that under the anti-lien restrictions of the Social Security Act states had a right to recover only from the portion of a settlement or award that was allocated to medical expenses. The remainder of the settlement went to help cover the recipient’s expenses not covered by Medicaid.  Seven years later, in Wos v. E.M.A. 568 U.S. 627 (2013), the Court struck down a state statute imposing a mandatory Medicaid lien on up to one-third of a recovery, reiterating that "[a]n irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act's clear mandate that a State may not demand any portion of a beneficiary's tort recovery except the share that is attributable to medical expenses." 

Following Wos, and without warning, Congress used the BBA to erase the protection Ahlborn and Wos afforded personal injury recoveries.  The 2013 budget bill amended the Social Security Act to give states the right to recover from Medicaid beneficiaries' entire settlements.  The BBA also gave states the right to place a lien on those settlements or awards. 
From the beginning, the American Association for Justice (AAJ) has vigorously fought to eliminate the BBA provision.  It managed to twice delay implementation -- first to October 2016, and then again to October 2017.  Ever since last October’s delay expired, the AAJ has worked for repeal.  “We believe this is a great victory that will ensure Medicaid recipients retain access to the courts,” said Linda Lipsen, AAJ’s Chief Executive Officer.  

Sunday, February 11, 2018

Federal Court Holds Long-Term Care Insurance Company Breached Policyholder's Contract by Raising Premiums


A U.S. court of appeals has ruled  that a long-term care insurance company breached its contract with a policyholder who purchased a "Reduced-Pay at 65" policy when it raised her premiums after age 65. Newman v. Metropolitan Life Insurance Company (U.S. Ct. App., 7th Cir., No. 17-1844, Feb. 6, 2018).  The case represents a rare holding in favor of policy holders against long term care insurance companies pursuing claims arising from dramatic premium increases. 
The plaintiff, Margery Newman, purchased a long-term care insurance policy from Metropolitan Life Insurance Company when she was age 56. She chose an option called "Reduced-Pay at 65" in which she paid higher premiums until she reached age 65, when the premium would drop to half the original amount. The long-term care insurance contract set out the terms of the reduced-pay option. It also stated that the company could increase premiums on policyholders in the same "class." When Ms. Newman was 67 years old, the company notified her that it was doubling her premium.
Ms. Newman sued MetLife for breach of contract and fraudulent and deceptive business practices, among other claims. The company argued that the increase was imposed on a class-wide basis and applied to all long-term care policyholders over the age of 65, including reduced-pay policyholders. The U.S. district court granted the company's motion to dismiss, ruling that the contract permitted the company to raise Ms. Newman's premium. Ms. Newman appealed.
The U.S. Court of Appeals, 7th Circuit, reversed, holding that the company breached its contract when it raised Ms. Newman's premium. According to the court, "none of the four references in the policy to [the company's] right to change premiums sufficed to disabuse a reasonable person of the understanding that purchasing the Reduced-Pay option took her out of the class of policyholders who were at risk of having their premium increased after their post-age-65 anniversary." The court also allowed Ms. Newman's claims for fraudulent and deceptive business practices to proceed.  The Court ruled that Ms. Newman showed sufficient evidence that the company's marketing of the policy was deceptive and unfair to proceed with those claims.
Although it is possible, an appeal to the United States Supreme Court is unlikely.  

Monday, February 5, 2018

Study Finds that POLST (Physician Ordered Life Support Treatment) Orders Meet Patient Goals

The News section of the National POLST Paradigm posted the following article:
"The Progression of End-of-Life Wishes and Concordance with End-of-Life Care,” a brief report authored by Jennifer Hopping-Winn, LCSW, Juliette Mullin, MPH, MBA, Laurel March, MA, Michelle Caughey, MD, Melissa Stern, MBA, and Jill Jarvie, RN, MSN, was published in the Journal of Palliative Medicine (January 2018, ahead of print). Using in-depth chart reviews from patients who had participated in the Kaiser Permanente Northern California (KPNC) advance care planing program, the study found that 290 out of 293 (99%) patients were found to have received goal-concordant care if a POLST was completed up to 12 months before they died. In 7 of 300 cases, concordance could not be determined.
Since 2013, KPNC has used an advance care planning program to elicit, document and honor the care treatment preferences of patients near the end of life. This study aimed to determine whether patient wishes were actually respected at the end of life, with a hypothesis that patients’ wishes would be their ultimate care preferences if the conversation occurred within 12 months of their death and that the patient would receive care concordant with those POLST-documented care preferences ~95 to 98% of the time, an estimate based on two previous studies on the concordance rate of the Respecting Choices advance care planning program.
In this study, the research focused on patient who had participated in the KPNC’s Life Care Planning (LCP) Advanced Steps (AS) program, modeled on the Respecting Choices’s Last Steps program. Patients are referred to LCP AS if their physicians estimate they are in their last year of life. An AS facilitator helps the patient discuss their preferences in the presence of their designated decision maker (DDM) about the patient’s preferences for end-of-life care.
Three LCP experts at KPNC conducted the in-depth chart review to determine goal concordance per patient. Concordance was defined as documentation that care received in setting before death was either consistent with documented wishes on patient’s POLST form or inconsistent with POLST selections, but consistent with the DDM’s or patient’s verbal guidance. Study authors noted that a particular strength of this study was the researchers’ accessibility to a breadth of information in order to determine care preferences and the final care received, made possible by the Kaiser Permanente integrated health system’s electronic health record that includes records from a wide variety of clinical settings.
The researchers randomly selected 300 of the 3701 patient who had participated in the AS program and died in 2015. How close in time the conversation took place before death varied from one day to more than 2 years, with an average time of about 10 months.  Among the 300, 253 had completed a POLST Form; among the 253 who had completed a POLST Form, 48 (19%) revised their care preferences at some point. Patients were more likely to change their preferences over time if the AS conversation was not recent or if they returned to the hospital for care. Most (85%) of the time, the patient of DDM opted for less intensive care when changing care preferences, and in most of these cases, the DDM made the change on behalf of the patient, generally when the patient’s condition deteriorated significantly and the patient could no longer speak for him or herself.
The study confirmed a very high level of respect for patients’ wishes across care settings. Only in three of the 293 cases were care decisions made by clinicians found to be in conflict with the patient’s wishes; one case occurred in a hospital emergency department, one in a community dialysis clinic, and one in a community skilled nursing facility. In each of these 3 cases, the DDM was not immediately available, leaving the decision to the clinician. The researchers noted that clinicians should not have to depend on the presence of a DDM in order to follow patient wishes; when accessible, the POLST Form should serve to help guide and communicate patient preferences when the patient or DDM is unable to do so.
The conclusion:
“A skillful, facilitated advance care planning conversation is a worthwhile approach for eliciting patients’ wishes, and the POLST form is a valuable tool. When patients’ preferences about medical care are made known in this way, they overwhelmingly receive concordant care. However, our findings highlight the need for comprehensive, continuous conversations across all care settings, even after a POLST is completed. As the U.S. healthcare system continues to improve end-of-life care, more research on the documentation and progression of care preferences is needed to fully understand how healthcare providers can best identify and act on patients’ wishes, especially when a DDM is unavailable.”

Friday, January 26, 2018

Dementia Specific Advance Directives More Prevalent

An increasing number of people will experience dementia. Worldwide, the number of people living with dementia is projected to increase from 47 million in 2015 to 132 million by 2050.

Family members and clinicians are often unsure whether the care they provide for patients suffering dementia is the care that patients would have chosen. Across the care spectrum, including skilled nursing facilities, hospital wards, intensive care units, and outpatient clinics, family members and clinicians commonly encounter this dilemma.  

In light of this concern, Paula Span has penned an excellent article One Day Your Mind May Fade. At Least You’ll Have a Plan in the New York Times as part of the New Old Age Series.  The article discusses advance directives for those with dementia.  The article follows a recent article published in the Journal of the American Medical Association (JAMA).  

According to these articles, existing advance directives are not particularly helpful for those with dementia because of the way dementia progresses over time with corresponding diminishing cognitive function.  The New York Times article explains:
"Although [dementia] is a terminal disease, dementia often intensifies slowly, over many years. The point at which dementia patients can no longer direct their own care isn’t predictable or obvious. ... Moreover, patients’ goals and preferences might well change over time. In the early stage, life may remain enjoyable and rewarding despite memory problems or difficulties with daily tasks."
The dementia-specific directive describes the person's wishes  as "goals of care" and offers four options for each stage of dementia, directing the person to "[s]elect one of the 4 main goals of care listed below to express your wishes. Choose the goal of care that describes what you would want at this stage."  The directive divides dementia into three stages, mild, moderate and severe.

The purpose of the dementia-specific advance directive is to express your wishes based on the specific "phase" of dementia you may enter in the future.  The website for this directive is here from which the 5-page directive may be downloaded.  The NY Times article describes that the directive:
"...in simple language...maps out the effects of mild, moderate and severe dementia, and asks patients to specify which medical interventions they would want — and not want — at each phase of the illness."
There are already a number of types of advance directives, with recent pushes for Physician Ordered Life Support Treatment (POLST) and other initiatives, such as the Conversation Project, and the Five Wishes.

Wednesday, January 17, 2018

FINRA and SEC Adopt New Rule to Help Curb Elder Financial Fraud

FINRA, the Financial Industry Regulatory Authority, Inc. (a private corporation that acts as a self-regulatory organization (SRO)). has released a series of questions and answers designed specifically to address elder financial exploitation. Frequently Asked Questions Regarding FINRA Rules Relating to Financial Exploitation of Seniors (FAQ's)  explains new rules that take effect on February 5, 2018.

The SEC recently approved: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person (“trusted contact”) for a customer’s account. FAQs Nos. 1 and 2 deal with temporary holds, No. 3 deals with trusted contacts, and No. 4 with disclosures.  The FAQs are available here.

FINRA Rule 2165 allows a FINRA member firm that reasonably believes financial exploitation may be occurring or has occurred to place a temporary hold of up to fifteen (15) business days on the disbursement of funds or securities from the account of a “Specified Adult” customer.  A Specified Adult is either (a) a person aged 65 or older; or (b) a person, aged 18 or older, who the firm reasonably believes has a mental or physical impairment that renders the individual unable to protect his or her own interest.

Rule 2165 also establishes additional recordkeeping requirements in order to comply with the rule including identification, escalation and reporting of matters related to the financial exploitation of Specified Adults.

Further, Rule 2165 requires a member firm’s supervisory procedures to identify the title of the person authorized to place, terminate or extend a temporary hold.  The person specified at the member firm must serve in a supervisory, compliance or legal capacity.

The rule allows member firms to exercise discretion in placing temporary holds on disbursements of funds or securities from the accounts of Specified Adults.  The rule serves as a safe harbor from violations of other FINRA rules, but Rule 2165 raises the question as to whether a stockbroker is qualified to pass judgment on the mental condition of his or her clients.

Additionally, the rule requires members to develop and documents training policies or programs reasonably designed to ensure that associated persons comply with its requirements to aid in identifying tell-tale signs of elder financial abuse.

Monday, November 27, 2017

Agent Under Power of Attorney Liable for Damages to Nursing Home for Breach of Contract

Nursing homes have devised numerous strategies to legally seek reimbursement from residents' family members in light of federal and state laws prohibiting them from demanding that family members personally guarantee payment of  a resident's nursing home bill. The Nursing Home Reform Act (NHRA), for example, which governs skilled nursing facilities and nursing facilities accepting Medicare and Medicaid assisted residents facilities cannot “require a third party guarantee of payment to [its] facility as a condition of admission (or expedited admission) to, or continued stay in, [its] facility.” 42 U.S.C. § 1395i–3(c)(5)(A)(ii); 42 U.S.C. § 1396r(c)(5)(A)(ii); see also 42 C.F.R. § 483.12(d)(2).  

Nursing Home admission agreements are, therefore, filled with alternate provisions, such as those requiring that family member or agents assist in obtaining Medicaid or other government assistance, or those requiring family member agents to ensure that the resident's assets are spent down on nursing home care.  Planners are concerned that these provisions might negate or interfere with otherwise lawful spend down strategies, such as spending assets for improvement of a home, or for purchase of a car for a resident's spouse.  

Supporting these efforts to find alternative reimbursement is a recent decision by an Ohio Court of Appeals.  The Court ruled in favor of a nursing home suing a resident's agent for breach of contract, holding that the nursing home is entitled to damages if the agent had control of liquid assets at the time the nursing home invoice came due even though some of the assets were paid to maintain the resident's home. Classic Healthcare Systems, LLC v. Miracle (Ohio Ct. App., 12th Dist., No. CA2017-03-029, Nov. 13, 2017).

David Miracle was his mother's agent under a power of attorney. When his mother entered a nursing home, he signed the admission agreement on her behalf and agreed to use his mother's finances to pay the facility. Mr. Miracle paid the nursing home infrequently, and his mother owed more than $100,000 by the time she was discharged.

The nursing home sued Mr. Miracle for breach of contract. Evidence showed that Mr. Miracle used $56,486.63 of his mother's resources to maintain her real estate and spent an additional $12,971.54 on payments not related to his mother. The trial court found that the additional payments were unauthorized and awarded the nursing home damages in that amount. The nursing home appealed, arguing that it was also entitled to the money that was used to maintain Mr. Miracle's mother's home.

The Ohio Court of Appeals reversed and remanded the case to the trial court.  The Court held that the nursing home is entitled to damages for breach of contract if Mr. Miracle "had control over liquid assets at the time an invoice came due." The court ruled that the trial court improperly looked at the entire nursing home stay as one transaction. According to the court, if Mr. Miracle "had control of [his mother's] liquid assets on the due date that were not paid to [the nursing home] then that amount constitutes damages properly payable to [the nursing home]."

For the full text of the opinion, go here


Saturday, October 28, 2017

Skipping the 401(k) RMD Without Penalty For Those Continuing to Work After Age 70


More than ever, workers are continuing to work into their 70s and beyond.  The general rules governing retirement accounts require nearly every individual account owner to begin taking Required Minimum Distributions (RMDs) by April 1 of the year following the year in which the owner turns 70½.  There exists a notable exception for employer-sponsored 401(k) accounts owned by employees who continue working past age 70½.


If the plan allows, an owner who leaves funds in the 401(k) can avoid RMDs if s/he remains employed with the employer who sponsors the plan.  Moreover, the owner can also continue to make contributions to the 401(k)! 

This exception has some significant requirements, though.  The current employer must sponsor the 401(k);  an owner cannot change employers and defer RMDs beyond age 70½.  In other words, if a former employer sponsors the relevant 401(k), the owner must take RMDs even if continuing to work for another employer that also sponsors a 401(k).  If the owner has more than one 401(k) and the plans allow for rollovers, however, it may be possible to roll all 401(k) funds into the 401(k) of a current employer and delay RMDs on all of the funds if the still working exception applies. Combining accounts will also simplify RMD planning once the owner stops working, because the RMD on each account would have to be determined separately.

The plan, too, must permit the exception.  Because not all 401(k) plans permit the exception, even though permitted by law, an account owner must ensure that his/her plan actually does allow the funds to remain in the plan to avoid a steep 50 percent penalty that apply to missed RMDs.

The exception does not apply if the plan is an IRA (whether a traditional, SEP or SIMPLE IRA).  As an aside, remember that RMDs do not apply to Roth IRAs during the original account owner's lifetime.   

Despite these carefully prescribed and limited conditions, the last condition, that the owner continues to work for the employer, is without a concrete definition, and therefore, may permit flexibility.  Because the IRS does not provide a provides a concrete definition of what it means to continue working past age 70½, it may be possible for an owner to continue working on a reduced-hours or consulting basis and still defer his or her RMDs past the traditional required beginning date.Of course, if special arrangements are crafted by an employer and employee, it is advisable to consult an attorney to document the special relationship in order to ensure that it won't be deemed a sham or fraudulent  arrangement by the IRS.

While an account owner may generally avoid taking RMDs from his or her 401(k) as long as s/he continues working past age 70½, many small business owners are not permitted to take advantage of this exception, because the exception does not apply to participants who are five percent owners of the business sponsoring the retirement plan.  Plan participants  who own a portion of the business sponsoring the 401(k) must also be aware of the constructive ownership rules that apply when determining whether s/he is a five percent owner; interests held by certain members of the owner's family (e.g., spouse, children, parents, etc.) and by certain entities which the owner controls  will be added to the ownership interest of the participant/business owner in determining whether the 5 percent threshold has been crossed.



The above article is based upon an article  published by ThinkAdvisor, which in turn was drawn from Tax Facts Online, and originally published by The National Underwriter Company, a Division of ALM Media, LLC, as well as a sister division of ThinkAdvisor. 

Monday, October 2, 2017

Nursing Home Complaints Rose by 33% over Four Years

From McKnight's Long Term Care News: complaints filed against nursing homes between and including the years 2011 and 2015 were up by a third, according to a federal report. 

In 2011, there were 47,279 complaints, which had risen to 62,790 by 2015, notes the new report from the Office of Inspector General Report from the Department of Health and Human Services.  More than half were prioritized as high priority or resulting in immediate jeopardy, triggering  onsite investigations within 10 working days. A third of complaints were substantiated, according to the OIG.

The increase in complaints may not reflect declining care quality, authors suggested, but instead, may reflect better options for filing and  tracking the reports.  For those concerned with care quality, however, the increase in complaints suggests that, even if care quality is not decreasing, care quality remains a significant challenge.  More than half of complaints related to quality of care/treatment or resident/patient/client neglect. Examples given included a lack of blood glucose strips for a patient with high blood sugar who was later found deceased, and a resident who called for assistance after a bowel movement and wasn't helped until three and a half hours later.

The summary of the Report reads:
"State survey agencies must conduct onsite investigations within certain timeframes for the two most serious levels of complaints-those that allege serious injury or harm to a nursing home resident and require a rapid response to address the complaint and ensure residents' safety. However, previous reports by OIG and the Government Accountability Office found that States did not conduct onsite investigations within the required timeframes for some of these complaints.
Each year, half of all nursing home complaints were at the level of seriousness that requires a prompt onsite investigation, and the most common allegations among these related to quality of care or treatment. During the period we reviewed, States conducted nearly all the required onsite investigations. Although almost all States conducted most of their onsite investigations within required timeframes, a few States fell short. Furthermore, almost one-quarter of States did not meet CMS's annual performance threshold for timely investigations of high priority complaints in all 5 years. Lastly, States substantiated (i.e., verified with evidence) almost one third of the most serious nursing home complaints.
Tennessee accounted for most of the immediate jeopardy complaints in the five-year period, the report says. Additionally, Tennessee, Arizona, Maryland and New York accounted for almost half of the high priority complaints not investigated onsite within 10 working days.

To read the Report, click here.  To read the OIG's summary and explanation of the Report, click here.

To learn how your estate plan might facilitate "Aging in Place," click here

Monday, September 25, 2017

Aging in Place: Use of Inappropriate Psychotropic Medications More Likely in SNFs with Over-Worked Staffs

New evidence suggests a link between overwork staffs in nursing facilities and the inappropriate use of psychotropic and antiphsychotic medications. Dutch researchers recently reported the results of a new study designed to identify possible patient and non-patient causes behind prescribing psychotropic drugs. The study included a sample of nearly 350 nursing home residents with a psychotropic drug prescription and dementia, according to an article published in McKnight's Long-Term Care News.  

The findings, published in International Psychogeriatrics, showed that the more patients and years of experience a physician had, as well as the higher the nursing staff's workload, the more likely the patient was to receive inappropriate psychotropic drug prescriptions.  Less appropriate prescriptions were also identified when residents had more severe anxiety, a diagnosis of dementia other than Alzheimer's, and more time spent with a physician.

Older residents and those with more severe aggression, depression and agitation were more likely to receive appropriate psychotropic prescriptions. 

The link between more pronounced symptoms and more appropriate prescribing “implies that physicians should pay more attention to the appropriateness” of prescriptions when symptoms are less obvious, the researchers said. The researchers also acknowledged that some of their findings may seem counterintuitive, and require more research before concrete recommendations are made.

Of course, this new evidence only supports the argument for planning to "Age In Place." For more information regarding Aging in Place planning, and the use of an Aging in Place suitable estate plan, go here.  

For more regarding negative health outcomes of the use of such medications in skilled nursing facilities, see Antipsychotics and Psychotropic Drugs Increase Fall Risks in Nursing Homes.

Thursday, September 21, 2017

Post-Irma Death Toll at Florida SNF at 9 as Provider Sues State Over Medicaid Ban

The death toll from the Florida skilled nursing facility that lost its air conditioning following Hurricane Irma rose to nine residents on Tuesday, as the provider geared up for a legal battle with state officials over its loss of Medicaid funding.
Carlos Canal, 93, is the ninth resident from The Rehabilitation Center at Hollywood Hills whose death officials have blamed on the soaring temperatures inside the Hollywood, FL facility after the air conditioning went out. Canal died of pneumonia with a 105 degree fever, his daughter told the Miami Herald.
This week also brought continued vitriol between The Rehabilitation Center and Florida Governor Rick Scott's (R) administration.The provider filed a lawsuit late Tuesday requesting an injunction against the state's orders to cut Medicaid funding from the facility, claiming the abrupt funding cut and admissions moratorium violated its due process, according to a news service report.
“With the stroke of a pen, [the Agency for Health Care Administration] has effectively shut down Hollywood Hills as a nursing home provider in Broward County,” the suit reads. “These illegal and improper administrative orders took effect immediately and without any opportunity for the facility to defend itself against unfounded allegations.”The lawsuit also argues that the facility followed its emergency preparedness plans while dealing with the air conditioning loss.
Scott disputed that claim in a statement issued Tuesday, saying the facility erred in not calling 911 sooner or evacuating residents to its partner hospital.“No amount of finger pointing by the Hollywood Hills Rehabilitation Facility … will hide the fact that this healthcare facility failed to do their basic duty to protect life,” Scott said. “Through the investigation, we need to understand why the facility made the decision to put patients in danger, whether they were adequately staffed, where they placed cooling devices and how often they checked in on their patients.”

Saturday, August 5, 2017

Aging in Place- Male Family Caregivers are Breaking Stereotypes

There are 40 million family caregivers in the United States helping with everyday activities and personal tasks ranging from bathing, dressing, wound care and medication management to transportation and finance.  The “typical” family caregiver is a 49-year old woman who takes care of a relative.  Men are not traditionally seen as caregivers.

A recent AARP Public Policy Institute  report suggests the the tradition is changing; men are increasingly filling care giving roles.  The report, Caregiving in the U.S., found that men represent 40 percent of all family caregivers.  That means that 6 million males serve as family caregivers.

Jean Accius, a Ph.D. with the AARP Public Policy Institute has penned an article explaining the ramifications gleaned from the pertinent data:
"These husbands, brothers, sons, sons-in-law, partners, friends, and neighbors are joining—either by choice, obligation, or necessity—the army of family caregivers providing care across the country. Male family caregivers are performing medical and nursing tasks as well as a range of personal care activities." 
In many cases, male family caregivers are caring for a spouse or partner. The PPI report shows that spousal caregivers in general face unique challenges, in part because they may lack an adequate support network.

There were notable differences, however, between males caring for a spouse and those caring for a parent.  Male caregivers, according to the report, provide more hours of care, and are more likely to be primary caregivers with little to no support from other family members, compared to male family caregivers taking care of a parent or other relative.
Men caring for a spouse reported having been a caregiver for a longer period of time than other unpaid male family caregivers (5.1 years compared to 3.9).

Dr. Accius reported:
"...the study found that male family caregivers were more likely (66 percent) to be working compared with female caregivers (55 percent). The large majority of employed male caregivers were working 40 or more hours per week at the time of caregiving. 
Regardless of gender, caregiving responsibilities often require family caregivers to make workplace accommodations. The study found that nearly two-thirds (62 percent) of male family caregivers had to make changes in the workplace as a result of their caregiving responsibilities [reference omitted].  Moreover, their caregiving duties affected their work in other significant ways:
  • Nearly half (48 percent) of male family caregivers went in late, left early, or took time off to provide care.
  • About 15 percent of male family caregivers took a leave of absence or went from working full time to part time to provide care.
  • Less than 10 percent of male family caregivers turned down a promotion (8 percent), received a warning about their performance or attendance (7 percent), or retired early or gave up working entirely (6 percent).
  • Nearly two-thirds (62 percent) of male family caregivers indicated that their caregiving experience was moderately to very stressful.
  • Almost half (46 percent) of male family caregivers experienced moderate to severe physical strain due to caregiving responsibilities.
Qualitative studies indicated that younger men had more “difficulties” in the caregiving role and communicated particular “psychological stress” when having to choose between work responsibilities and caregiving responsibilities. [reference omitted].  More than one-third (37 percent) of male family caregivers did not inform their employers about their caregiving responsibilities. The percentage of male family caregivers who did not inform their supervisors was even higher for millennials (45 percent).
Despite this trend, though, considering the aging of the population, increases in life expectancy, and shrinking families, the supply of family caregivers is unlikely to keep pace with future demand.  Aging in place planning, therefore, is extremely important.  The planning shoul consider the unavailability of typical caregivers, and should consider the unavailability of family caregivers. 

Wednesday, July 26, 2017

Half of Most Dangerous Nursing Homes Remain Treacherous for Residents After Homes Are Cleared By Regulators

The Centers for Medicare and Medicaid Services (CMS), sets the federal standards for nursing homes and determines whether they are in compliance based on inspections performed primarily by state health departments. States license facilities and have  authority to revoke the licenses.  CMS designates "special focus status" to the poorest-performing facilities out of more than 15,000 skilled nursing homes. In an arbitrary system befitting government bureaucracy, the federal government assigns each state a set number of special focus status slots, roughly based on the number of nursing homes. Then state health regulators pick which nursing homes to include.
More than 900 facilities have been placed on the watch list since 2005. But the number of nursing homes under special focus at any given time has dropped by nearly half since 2012, primarily because of federal budget cuts negotiated by President Barack Obama and Congress. This year, the $2.6 million budget permits only 88 nursing homes to receive the designation, though regulators identified five times as many facilities, 435, as warranting such scrutiny. California and Texas each has six slots, the most of any state. Twenty-nine states have just one.

Especially troubling is that more than a third of operating nursing facilities that graduated from the watch list before 2014 continue to hold the lowest possible Medicare rating for health and safety, a one of five possible stars, according to an analysis performed by Kaiser Health News (KHN).  But worse, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to a KHN analysis of federal health inspection data. According to KHN, of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.These nursing homes are in 46 states. Some gave patients the wrong medications, failed to protect them from violent or bullying residents and staff members, or neglected to tell families or physicians about injuries. Years after regulators conferred clean bills of health, levels of registered nurses at these facilities tend to remain lower than at other facilities.
Yet, despite recurrences of patient harm, nursing homes are rarely denied Medicare and Medicaid reimbursement. Consequences can be dire for patients  According to a KHN analysis, in 2012, Parkview Healthcare Center’s history of safety violations led California regulators to designated Parkview nursing home, a “special focus facility,” requiring it to either fix lapses in care while under increased inspections or be stripped of federal funding by Medicare and Medicaid — a financial deprivation few homes can survive. After 15 months of scrutiny, the regulators deemed Parkview improved and released it from extra oversight.
But a few months later, Elaine Fisher, a 74-year-old who had lost the use of her legs after a stroke, slid out of her wheelchair at Parkview. Afterward, the nursing home promised to place a nonskid pad on her chair but did not, inspectors later found. Twice more, Fisher slipped from her wheelchair, fracturing her hip the final time. The violation drew a $10,000 penalty for Parkview, one of 10 fines totaling $126,300 incurred by the nursing home since the special focus status was lifted in 2014.
The cost to injured residents is incalculable.  Fisher "used to go to bingo every day and she was very involved in the nursing home,”  her son-in-law, Eric Powers, told KHN. Although Fisher moved to a different nursing home for better care, Powers related that “after this whole thing, she has to be on painkillers. She’s mainly in her room all the time. It’s the saddest thing in the world.”
In 2010, NMS Healthcare of Hagerstown, Md., left the watch list after 10 months.  Last year, Maryland’s attorney general sued the facility and its owner, Neiswanger Management Services (NMS), alleging that they evicted frail, infirm and mentally disabled residents “with brutal indifference” when their health coverage ran out or the facility had the opportunity to get someone with better insurance.

Among those evicted was Andrew Edwards, who was told by NMS that he was being discharged to an assisted-living center, according to the lawsuit. Instead, in January 2016, the staff sent him to a crowded, unlicensed Baltimore City row house where the owner confiscated his bank card and withdrew $966 over his objections, the lawsuit said. Although NMS said it had arranged for his outpatient kidney dialysis, “that was false,” Edwards said in an interview. He ended up in an emergency room after he missed his treatment.

NMS maintains it stopped referring patients to that owner when told of the conditions. This month, CMS expelled the Hagerstown nursing home from Medicare and Medicaid after citing it for more violations. The company is closing the facility. NMS, which still runs other homes in Maryland, has sued state regulators, claiming they are vindictively trying to drive the chain out of business.
Too few nurses, particularly registered nurses, provide care at some of the most troubled homes, KHN’s analysis showed. Registered nurse staffing was still 12 percent lower than at other facilities, even three years after the homes were released from the watch list.
In 2009, Pennsylvania health regulators released Golden LivingCenter-West Shore in Camp Hill after 17 months of supervision. The company said in a recent statement that when a home was put on that list, “we mobilize the resources necessary to help get that LivingCenter back into compliance.”
But data from Medicare’s Nursing Home Compare website show the facility has among the worst nurse-to-patient staffing ratios in the nation, with registered nurses devoting an average of 12 minutes for each patient daily. The state average is 58 minutes daily per patient.
Golden LivingCenter-West Shore was fined $59,150 in 2015 after being cited for, among other violations, "allowing a resident’s feeding tube to become infested with maggots." Also, according yo KHN, Golden Living agreed to pay $750,000 to settle three cases involving patient injuries from falls that occurred after extra oversight ended, court records show.

Last year, Golden Living sold its Pennsylvania homes to Priority Healthcare Group.  Priority is following a common strategy for shedding an unwanted reputation: changing the facility’s name. In California, Parkview — where Fisher slipped out of her wheelchair — is being rebranded too, as Kingston Healthcare Center.

CMS defended the program to KHN, saying that "nursing homes on the watch list showed more improvement than did comparably struggling facilities not selected for enhanced supervision."  In other words, putting 88 facilities on the watch list meant that they showed more improvement than the 435 other facilities deserving special focus status, but which were permitted to continue with no special oversight or ultimatum.  That is a defense of a program that asks advocates and critics to applaud what appears to be a system in failure, if CMS is, as it appears to be, acknowledging that th 435 other facilities aren't improving as a result of a failure by the government to demand that they improve, or implement stricter oversight, or threaten to stop Medicare/Medicaid reimbursement.  
“CMS continues to work to improve oversight to prevent any facility from regressing in performance,” reads a CMS statement to KHN.  
Some nursing homes on the watch list do maintain improvements. After Evergreen Nursing Home in southern Alabama was designated a special focus facility in 2005, the owners brought in new managers and added nursing supervisors.  Medicare now rates Evergreen a five-star facility. 
But even prolonged supervision does not guarantee progress. Poplar Point Health and Rehabilitation in Memphis stayed on the watch list for 2½ years until 2009. federal lawsuit brought last year claims that Poplar and its owner, Vanguard Healthcare, regularly provided “nonexistent, grossly substandard, worthless care” as far back as 2010. Vanguard, now in bankruptcy court, declined to comment to KHN.
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