Antipsychotics and Psychotropic Drugs Increase Fall Risks in Nursing Homes

McKnight's Long Term Care News reports that psychotropic drugs, including antipsychotics and antidepressants, increase the risk of falls among nursing home residents, according to a recently published study.

Previous research suggested a link between psychotropic prescriptions and falls in nursing home residents, but little was known of how "as-needed" prescriptions impacted fall rates. The study, published in the December issue of JAMDA - The Journal of Post-Acute and Long-Term Care Medicine by Dutch researchers, not only backed up earlier research, but found a relationship between falls and drugs taken on an as-needed basis as well.

Of the 2,368 nursing home residents in the study, nearly 70% had a prescription for at least one psychotropic drug per day. An additional 8.8% had an as-needed psychotropic prescription. The study's authors found that 33.5% of residents had at least one fall, which most often occurred on days when a psychotropic drug was prescribed on a scheduled basis.

Residents receiving the drugs on a scheduled basis had a nearly threefold increase in falls. An increase in fall incidence also was noted in residents prescribed the drugs on an as-needed basis. Results of the study also showed that male residents had a fall risk nearly two times higher than female residents.

Study results showed no link between fall incidence and the prescription of benzodiazepines, drugs commonly used to treat anxiety and insomnia.

An Ohio appeals court has ruled that a Medicaid applicant did not transfer assets for less than fair market value even though he sold property at below the appraised price because the sale was an arms-length transaction. Lawrence v. Ohio Department of Job and Family Services (Ohio Ct. App., 6th Dist., No. H-15-020, Sept. 2, 2016).

Eugene Lawrence owned a rental property that he could no longer maintain, so he sold it in 2011 for $22,720, which was the remaining balance on the mortgage. The auditor had appraised the property at $66,800. In 2014, he entered a nursing home and applied for Medicaid. The state determined that because Mr. Lawrence sold the property for less than the fair market value, it was an improper transfer, and it imposed a penalty period.

Mr. Lawrence appealed the decision. After a hearing, the state upheld the penalty period, and Mr. Lawrence appealed to court. The trial court found that Mr. Lawrence sold the property in an arms-length transaction, so the state should not have imposed a penalty period. The state appealed.

The Ohio Court of Appeals, Sixth District, affirmed, holding that Mr. Lawrence did not transfer assets for less than market value. According to the court, "the market conditions at the time of the sale combined with the condition of the property and circumstances of the sale demonstrated an arms-length transaction for fair market value."

Although the result is comforting for those who must plan for Medicaid eligibility, the case is instructive of the difficulties applicants may face.  The state upheld the decision on appeal to an Administrative Law Judge, but the Common Please Court held in favor of the applicant.  The applicant then was forced to defend the decision in the Court of Appeals.  Proceeding through the court system is not easy, or inexpensive.  

For the full text of this decision, go here.

ACLU Takes On Nursing Homes

McKnight's has published an excellent and illuminating editorial regarding how some seniors who need institutional care are routinely frustrated in seeking and obtaining care by the very institutions themselves.  The editorial explains, using a specific example, how the ACLU has finally involved itself in skilled nursing home placement decisions or refusals.  The editorial reads: 

As in all cases involving a resident who wasn't accepted at a nursing home, each side has a different take on what happened.

According to the Lincoln Star-Journal, Nebraska resident Courtney Shelor says her father wasn't accepted at six nursing homes because he had HIV. A statement from the ACLU followed this week, via a letter to the homes in question reminding them of state and federal law.If you missed the basic tenants around the Americans with Disabilities Act (or Section 504 of the Rehabilitation Act of 1973), it's here.  

Accepting a person with a terminal illness into your nursing home also would hopefully be found within your own moral code.While it was 68 miles away from his family, Shelor was finally accepted at Golden Living Center in Broken Bow. I suspect that administrator or admissions director was simply doing her job, but let me say publicly: Good for you for making his last days good ones. Shelor writes that this facility “welcomed us with open arms!” While the center had never had anyone with HIV, it was able to make it work, including helping the elder Shelor be approved for Medicaid.You can read the rest of the younger Shelor's letter here, in which she talks about her father being her hero. He died at the end of July.

Go here to read the rest of the article.

Bill Offers Tax Credit for Aging In Place Improvements

Making your home more accessible for your long term care needs may soon be incentivized by a $30,000 tax credit.

Rep. Patrick Murphy, D-Fla., recently introduced H.R. 5254, entitled, “Senior Accessible Housing Act,” which would incentivize individuals 60 years of age and older to “age in place” by way of a $30,000 tax credit for home modifications. Potential modifications include the widening of doorways and the installation of ramps, handrails, grab bars and non-slip flooring.

The Congressional Research Service (CRS) summary of the Bill reads as follows:

This bill amends the Internal Revenue Code to create a nonrefundable personal tax credit for senior citizens who modify their residences to enhance their ability to remain living safely, independently, and comfortably in the residences.  

The credit applies to up to $30,000 of the expenses that individuals who are at least 60 years old incur over their lifetime to make modifications to their residences, including: 

•  the installation of entrance and exit ramps;

• the widening of doorways;

• the installation of handrails or grab bars

• the installation of non-slip flooring, and;

• other modifications that the Internal Revenue Service (IRS) includes on a list of modifications that would enhance the ability of the individuals to remain living safely, independently, and comfortably in their residences.

The IRS must establish and maintain the list of acceptable modifications after consulting with the Department of Health and Human Services (HHS) and receiving input from the public. 

The Bill and credit would certainly be more meaningful if current HHS policy was not hostile to home bound health care or home bound hospice care.  For more information regarding HHS policy of actively discouraging use of the Medicare home health care and hospice benefits, go here and here.  Regardless, the Bill currently has 19 co-sponsors.

To follow activity on the bill, go here.

To read the text of the bill, go here. 

HHS Can't Delay Medicare Appeals Backlog Case While Backlog Worsens

The Department of Health and Human Services (HHS) won't be able to push off litigation over its overwhelming backlog of Medicare appeals, a federal court ruled on Monday.  The HHS had asked the Court to stay the litigation, which was filed by the American Hospital Association and three other hospital organizations, until Sept. 30, 2017. HHS asked for the delay to allow the agency to move ahead on administrative and legislative efforts designed to tackle the backlog of more than 700,000 appeals, including implementation of a set of strategies proposed as recently as June.

The U.S. District Court for the District of Columbia's denied HHS' motion to stay the litigation, after describing the agency's proposed fixes as “impressive-sounding action items” that won't do much to curb the backlog as it grows to more than 1 million appeals in fiscal year 2020."  Judge James E. Boasberg wrote:  

“The best medicine can sometimes be hard to swallow,” wrote  “... the backlog and delays have only worsened since [HHS] first sought the Court's help, and the Secretary's proposed solutions are unlikely to turn the tide.”  

In denying the HHS' request, the court nonetheless turned down the hospital groups' request that the Court order the agency to resolve the appeals.     The Court explained that:

“[t]he Court, however, does not possess a magic wand that, when waved, will eliminate the Backlog.  Plaintiffs' suggestion that the Court simply order HHS to resolve each of the pending appeals by the statutorily prescribed  deadlines is extremely wishful thinking."

Of course, among the proposed strategies, one will not find a reversal of HHS opposition to lawful home health care and hospice care.  In other words, HHS appears satisfied with strategies designed to reduce the backlog of cases, but unwilling to reverse the positions that cause the backlog of cases in the first place.  For more information regarding the HHS position on home and hospice care, go here.   

Class Action Alleges Medicare Has Policy of Denying Home Health Appeals

A U.S. district court has recently ruled that there is evidence that Medicare has a policy of routinely upholding denials of home health services at the first two levels of review. Sherman v. Burwell (U.S. Dist. Ct., D. Conn., No. 3:15-CV-01468(JAM), Aug. 8, 2016).  The court certified a class and denied a motion to dismiss a claim against the Department of Health and Human Services.

Bradley Olsen-Ecker was a Medicare beneficiary who required home care after a hospitalization. He received care from a Medicare-certified home health agency, including skilled nursing visits and physical therapy. After a few months, Medicare informed him that it would no longer cover home care because unskilled caregivers could meet his needs. Mr. Olsen-Ecker appealed the decision. Medicare denied the appeals at three levels of review. Finally, Mr. Olsen-Ecker's physical therapist submitted a "demand bill" to Medicare, and Medicare reimbursed the physical therapist for its services. Mr. Olsen-Ecker passed away during the appeal process.

The current Medicare appeals process involves four separate levels of review.  First, Medicare beneficiaries who wish to appeal a decision receive a paper review redetermination by the original contractor who made the determination. A "paper review" is a review of the documents alone, without an in-person hearing. If that review fails, the beneficiary requests reconsideration by a separate entity that contracts with HHS (known as the Qualified Independent Contractor, or QIC). If a beneficiary does not obtain relief from the QIC‘s review, he may request a hearing before an Administrative Law Judge (ALJ). Finally, if the claim is denied by the ALJ, a beneficiary may receive a paper review by the Medicare Appeals Council. There is also an expedited process available, of which Olsen-Ecker took advantage of in his appeals process.

The current review process went into effect in 2010. Previously, a Medicare beneficiary who wanted to appeal an initial adverse determination first obtained a paper review by the original contractor. If that appeal was denied, then the beneficiary could either receive a hearing in front of an ALJ or a "carrier hearing" involving a complete review of the record before a hearing officer, depending on the type of Medicare benefits the beneficiary received. Either way, the second level of review under the old review system involved a hearing and not just another paper review. Then, if the beneficiary still wanted to appeal, he either received a paper review by the Medicare Appeals Council, or an ALJ hearing if he had not had one before, and then a paper review by the Medicare Appeals Council.  

Changes in the review  process have resulted in a drastic reduction in the number of appeals that result in a favorable coverage determination for beneficiaries at the first two levels of review, i.e., the redetermination by paper review by the original contractor, and the reconsideration by paper review by the QIC. These two levels of reconsideration have success rates for claimants as low as .61% each year, or as high as 2.2%. The total number of redetermination requests has also increased nearly ten-fold from 13,385 in 2008 to 112,844 in 2012. The change has also placed a great burden on the ALJs, increasing their workload by 184%. In the meantime, the reversal rate by ALJs -resulting in favorable coverage decisions- is about 70% across all of Medicare, and 62% on home health care and hospice decisions, according to HHS.  Simply, despite rhetoric of HHS to the contrary, it appears that HHS is agressively hostile to both home health care, and hospice care. 

Mr. Olsen-Ecker's estate filed a class action lawsuit against the Department of Health and Human Services (HHS) for violating Mr. Olsen-Ecker's constitutional  due process rights, alleging that the agency has a secret policy to deny home health services claims at the first two levels of review. According to the estate, HHS denies up to 99 percent of claims at the first two levels of review and that at the administrative hearing level of review, administrative law judges (ALJs) reverse the lower levels of review 62 percent of the time. HHS filed a motion to dismiss for failure to state a claim.

The U.S. District Court, District of Connecticut, denied the motion to dismiss. The court certified the class and ruled that there is plausible evidence that policies exist that deprive some Medicare beneficiaries of meaningful review.  According to the court, the high number of reversals at the ALJ level of review suggests that "whatever review occurred at the first two levels of review could have plausibly contained defects, because absent some aberration, the first two levels of review should have granted coverage to a far greater proportion of beneficiaries."  Moreover, the Court cited the "somewhat unnerving alleged facts...that his first two levels of review found that tasks like assessing the effectiveness of medication and performing body system assessments could be performed by [Mr.  Olsen-Ecker] or by unskilled care," suggesting to the Court that "it is not implausible to believe that there may have been some policy put in place that, when administered by the care providers and QICs, resulted in improper denials.  Sherman v. Burwell at p. 13.

Attorneys from the Center for Medicare Advocacy represented the estate. “We hope,” said Judith Stein, the Center’s Executive Director, “that this case will eventually result in Medicare beneficiaries’ receiving fair and accurate appeal decisions, without having to present their case at a hearing.”  

For information what Medicare's homebound or home health care benefits "should" be, go here.

For the Center’s news alerts on the decision, click here.

DOL Conflict of Interest Rule Impede Management of Retirement Funds

The $7.3 trillion IRA market is the largest and fastest-growing segment of the U.S. retirement market.  The Department of Labor’s (DOL) new conflict of interest rule will, however, impose greater scrutiny and complexity on the rollover market and potentially disrupt proper management of these assets.  These are the conclusions of global analytics firm Cerulli Associates in a new survey, “U.S. Evolution of the Retirement Investor 2016: Regulation and investor addressability.” The report explores the future of the IRA rollover market following implementation of the DOL’s fiduciary rule.

Jessica Sclafani, associate director at Cerulli, explained:

“There is general consensus in the retirement industry that more assets will remain in employer-sponsored DC [defined contribution] plans because of the rule.  While Cerulli generally agrees with this statement, there are additional considerations, such as the influence of existing advisor relationships, which is the greatest driver of IRA rollover assets, in addition to DC-plan-specific considerations, such as current DC plan design and lack of in-plan retirement income solutions, that may continue to support the migration of DC plan assets to the retail IRA market.”

Using Cerulli’s proprietary IRA rollover model, their research seeks to quantify the degree to which assets traditionally pegged as headed toward the IRA market may now be “at risk” and more likely to remain in employer-sponsored DC plans.  Cerulli’s IRA-focused research also examines how IRA providers that are also retirement plan providers will negotiate this new landscape in which it will be more challenging to direct DC plan participants to move assets from a low-cost account with institutional pricing to a higher-cost retail account.

Common wisdom has long held that most investors benefit from rolling over an employer-sponsored 401(k) to a self-directed IRA when permissible.  CPA Ed Slott, author of "The Retirement Savings Time Bomb ... and How to Defuse It,"  told Bankrate.com  that IRAs offer "more choice, more control" for consumers than company-sponsored 401(k) plans. "In most cases, a rollover is better," says Slott, author of "The Retirement Savings Time Bomb ... and How to Defuse It." But, he admits, there are some issues -- like holding company stock, early retirement, or threats of law suits, that in specific situations mitigate against roll-over.  Of course, for the consumer, the important take-away is that the consumer needs to get good advice.

Unfortunately, the new conflict of interest rules mean, if the study is correct, that consumers are less likely to get that advice, and therefore, are less likely to make the proper investment and management choices.

The reasons are myriad and complex.  One example identified in the study is the heavy reliance by consumers accustomed to dealing with institutional employer-sponsored defined contribution plans on call centers for advice and counsel.  According to industry reports,  the most frequently cited reasons for participants to contact their 401(k) plan call center are to change investments (47%).  Plan participants may fear making a mistake online or they may want reassurance throughout the process, so they turn to the 401(k) call center. The topic of investments, whether transactional or informational, can be a precarious one for call centers, especially with the recent regulations passed down from the Department of Labor (DOL). Just because call center representatives are registered does not necessarily mean they can provide investment advice to 401(k) plan participants. As a result, consumer's are left with bad advice, or refusal to give proper advise due to threatened or potential liability for suggesting better alternatives.

Another example is in naming beneficiaries.  Even competent investment advisors have difficulty advising plan participants properly, particularly when they are unaware of the specifics of an investor's estate plan.  Should a trust be a beneficiary of a qualified plan?  As most clients getting proper estate planning advice know, the answer to that question depends upon a variety of factors, including the objectives of the investor, the type of trust, and the availability of other options.  The new rules only make it more likely that an investor will be advised to "stay the course," potentially assuring the investor in improper management and investment decisions.

Obviously, the solution for the consumer is to build a team of professional financial and legal advisors working together, and sharing information regarding goals, philosophies, tools, and alternatives.  In that way, both the consumer and the participating professionals can be assured that their clients are receiving and implementing proper management and investment decisions.

For more information, go here.

Contesting Guardianship or Challenging Guardians Is Problematic

Nina A. Kohn, Associate Dean for Research,  David M. Levy,  Professor of Law at the Syracuse University College of Law, and Catheryn Koss, Founder and former Executive Director of the Senior Law Resource Center, have written an excellent and revealing article describing the challenges for seniors and the disabled in obtaining counsel in modern guardianship cases. The article, "LAWYERS FOR LEGAL GHOSTS: THE LEGALITY AND ETHICS OF REPRESENTING PERSONS SUBJECT TO GUARDIANSHIP, is published in the Washington Law Review.

The article begins by describing the landmark guardianship battle fought in 2012 by Jenny Hatch, a 28-year-old woman with Down syndrome. Ms. Hatch was placed in a group home by her parents, who were appointed as her guardians. Ms Hatch grew despondent about the restrictive placement, the loss of her independent lifestyle, and that she was no longer permitted to work at a local thrift store. She retained an attorney to challenge both the existence of the guardianship and the appointment of her parents as guardians.

She prevailed. In a landmark decision, a Virginia court removed her parents as guardians, appointed Ms. Hatch's close friends in their place, and held that the guardianship itself would terminate after a year. A year later, she was legally reincarnated, restored from being a ward of the state to full legal personhood. The Hatch case was reported on this blog.

The authors next describe why the Hatch case was so extraordinary:

Jenny’s story captured national attention in large part because it is so unusual. Few persons subject to guardianship are able to change the terms and conditions of their guardianships, let alone regain legal capacity after a court has determined that they lack capacity to make decisions for themselves. Jenny [Ms. Hatch] was able to do both.  

A key factor in this success was that Jenny had access to legal representation. Unfortunately, many people in Jenny’s position do not. A major factor contributing to this lack of access is that attorneys are unsure whether they may legally and ethically represent a person subject guardianship.  Attorney reluctance to undertake such representation is understandable.  [emphasis added]. A person subject to guardianship has, by definition, been judicially determined to lack legal capacity and his or her decisions have been delegated to a third party... Through this process, the person has not only been declared by a court to be incapable of directing his or her own affairs but has typically been stripped of the capacity to enter into a legally binding contract. Both may appear to be insurmountable barriers [to effective legal representation]. Attorneys generally can only represent clients who have the capacity to enter into a contract to hire the attorney and the capacity to direct the attorney during the course of the representation. Moreover, in some jurisdictions, probate courts have taken the position that they can prevent a lawyer from representing a person subject to guardianship who wishes to challenge the guardianship.

The authors agree that, especially under these circumstances, guardianship can be a devastating result with significant consequence.  The abstract to the article explains:

Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed — as research suggests is not infrequently the case [emphasis added] — the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but have been stripped of the capacity to contract. As a result, those who wish to challenge the terms and conditions of their guardianship, or even merely to exercise unrelated retained rights, can be stymied because attorneys are unwilling to accept representation for fear that it is unlawful or unethical.

The aging of the population means the number of persons potentially subject to guardianship is likely increasing. Although precise figures are unknown, estimates suggest that about 1.5 million adults are subject to guardianships in the United States. Many of these are older persons who suffer from Alzheimer’s disease or other forms of dementia. The number of persons subject to guardianship may grow as the number of persons with such conditions increases.  The number of older individuals over age sixty-five in the United States diagnosed with Alzheimer’s disease is projected to reach more than seven million by the year 2025, a forty percent increase over 2014 figures.

"Perhaps more importantly, there is a growing recognition that many guardianships have been wrongly imposed or are overbroad."  This recognition, encouraged in part by the United Nation’s adoption of the Convention on the Rights of Persons with Disabilities (CRPD), has, according to the authors, led to increased interest from the disability rights community in restoring the rights of persons subject to guardianship by challenging judicial determinations of incapacity.

For more information regarding guardianship, see the following articles:

• Estate Plans Should Consider and Attempt to Resolve Guardianship;
• Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage; 
• GAO reports on Guardianship Abuse;
• National Groups Acknowledge Need for Guardianship Reform;
• Report on Abuse by Guardians and the Guardianship Process Released;
• Another Reason for Guardianship Planning: Guardian Convicted of Homicide in Death of Ward 

Considerations in Crafting Health Care Proxies or Durable Powers of Attorney for Health Care

The most important document in your estate plan is the document appointing a health care proxy.  In Ohio and in Missouri this document is called a Durable Powers of Attorney for Health Care.  A health care proxy is a legal document that appoints another person to make health care decisions for you if and when you are unable. This person is usually called a proxy, agent, or attorney-in-fact.

The reason your health care proxy is the most important document in your estate plan, is that it protects you during your life at a time when you are most vulnerable- when you are ill, incapacitated, and/ or incompetent.  It helps to ensure that timely health care decisions can be made in emergent situations, and  it also helps to ensure that you always receive the health care you prefer. In health care decision-making, timeliness, quality, and preferences, are all important objectives best attained by a proper health care proxy.

Typically, you do not have to be terminally ill for a health care proxy to go into effect.  Nonetheless, a health care proxy can, if you so choose, enforce your end-of-life decisions.  Your living will, or advanced declarations, make your wishes known to your health care professionals.  In the event that they decline or refuse to act on your behalf, your health care proxy can protect your decisions.

If you do not appoint a health care proxy and cannot make health care decisions, state law determines who can make decisions on your behalf. Most states have laws that let close family members and others (surrogates) act on your behalf if you haven’t appointed a health care agent, but you may not want these people to make decisions for you.  Moreover, there may be delay resulting from identifying and verifying the relationship of these surrogates.  Finally, there may be limitations on what decisions these surrogates can make on your behalf.  

When choosing a health care agent, it’s important to appoint someone:

• Who you trust;
• Who you are confident will implement your decisions rather than substituting their decisions for your own;
• Who knows you, and therefore well understands your medical preferences;
• Who will be assertive in making decisions;
• Who will honor your wishes;
• Who will be able to resist pressure from family, friends, and/or health care professionals and institutions to ignore or alter your decisions;
• Who will be capable of communicating effectively with health care professionals;
• Who can be reached in the event of an emergency.

Because you should always appoint multiple successive agents, it is not necessary that the person you choose be the person that lives nearer your hospital, but you might resist appointing a person in active military service who is often unavailable for long periods of time.  Additionally, because familiarity with the health care system and medical terminology and procedures might make for more efficient communication and decision-making, you might consider more favorably those with medical background or experience.

Regardless, once you have appointed an agent, you must follow through with the appointment by communicating your choices with your agent.  At a minimum, that should mean providing the agent a copy of your health care proxy, and living will.  You should inform them of the identity of your primary care physician. In addition, you should discuss with your health care agent:

• Personal attitudes towards health, illness, dying, and death;
• Religious beliefs;
• Feelings about doctors and other caregivers;
• Feelings about institutional care and alternatives to institutional care;  
• Feelings about palliative care versus life-sustaining treatments like technologically supplied food and and hydration;
• Treatment preference if you are permanently unconscious or unconscious for a long time and not expected to recover.

You might consider a system like LegalVault® to effectively communicate, store, and make available your health care decisions and information to your agents and health care professionals.

A health care proxy generally only confers upon your agent the authority to make medical decisions for you. Decisions about things such as health insurance may be considered a financial, and not a medical decision,  depending on state law. It’s generally best to consult with a lawyer to appoint a general power of attorney for financial and non-medical decisions.

You do not need an attorney to write a health care proxy. You can use a standardized form and tailor it to your needs, but you may want to consult legal counsel to ensure that it meets all of your state’s legal requirements. Many attorneys, like myself, will either provide a statutory form, or will prepare a health care proxy at no or minimal expense.  

New York Spousal Refusal to Contribute to Care Creates Implied Contract to Repay Benefits

In what appears to be a first of it's kind decision, a New York trial court has entered a judgment against a woman who refused to contribute to her spouse’s nursing home expenses, finding that because she had adequate resources to do so, an implied contract was created between her and the state entitling the state to repayment of Medicaid benefits it paid on the spouse’s behalf. Banks v. Gonzalez (N.Y. Sup. Ct., Pt. 5, No. 452318/15, Aug. 8, 2016).  The decision is being reported by ElerderLawAnswers.com.

According to the site, Evelyn Gonzalez’ spouse was admitted to a nursing home and received $28,235.56 in Medicaid benefits from the Department of Social Services of the City of New York.  At the time of her spouse's Medicaid application, Ms. Gonzalez’ assets exceeded the state's Community Spouse's Resource Allowance (CSRA).  However, she signed a "Spousal Refusal" declaration refusing to make her income or resources available to pay for her spouse’s care.  

Spousal Refusal is an aggressive strategy where the community spouse seeks to keep all of his or her assets by simply refusing to support the institutionalized spouse, and is generally not used except in where the states have adopted the federal law in this area, or where a federal court has upheld this right.  Under the law, if a spouse refuses to contribute his or her income or resources toward the cost of care of a Medicaid applicant, the Medicaid agency is required to determine the eligibility of the nursing home spouse based solely on the Medicaid applicant's income and resources, as if the community spouse did not exist.  In 2005, a federal appeals court upheld the right of the wife of a Connecticut nursing home resident to refuse to support her husband. The husband was able to qualify for Medicaid coverage, and assets that he had transferred to his wife were not counted in determining his eligibility.   Morenz v. Wilson-Coker (2nd Cir., No. 04-4107-CV, July 14, 2005).

After a letter to Ms. Gonzalez demanding repayment of the cost of Medicaid benefits paid on behalf of her spouse went unanswered, the Department of Social Services of the City of New York filed suit.  s. Gonzalez did not respond to the summons and complaint, nor to the agency’s motion for default judgment.

The Supreme Court of New York, New York County, granted the motion and entered a default judgment against Ms. Gonzalez for the cost of benefits provided to her spouse.  The court noted that in cases such as this where Ms. Gonzalez has the income and resources but refuses to contribute to her spouse’s care, state law creates an implied contract between her and the state allowing recovery of the cost of the benefits provided during the preceding 10 years.

SNF Fails to Report Resident's Death Because of "Bad Press."

A Massachusetts nursing home chose not to report the death of a resident because of “bad press” garnered by its parent company, according to an article published in McKnight's.

The death occurred at Braemoor Health Center in Brockton, MA, in April, according to the investigation report obtained by the Boston Globe. A resident had a heart attack and staff did not have proper training for resuscitation, the report found.

The facility did not report the death to the state because the resident “had no family,” nursing staff allegedly told state investigators. The administrator said they also chose not to report the incident due to “bad press” surrounding the home's parent company, Synergy Health Centers.

Synergy, which operates 11 nursing homes in Massachusetts, was fined $100,000 in March following a resident's death at another facility.   The 70-page report also delves into another Braemoor resident's death in March of this year, along with issues with staff training, defective medical equipment, missing elopement alarms, caring for residents with substance abuse problems and handling of thefts and sexual assault incidents.

The facility was fined $200,000 and was banned from accepting new admissions in July due to the violations cited in the report. State investigators based the report on surprise inspections carried out in late July.

In a statement released to the Globe, Synergy said it has created plans to correct the issues detailed in the report, including an overhaul of staff training procedures:

“We submitted an extensive plan of correction... which addresses all of the issues raised in their report. We have already begun to implement a number of the actions outlined in the report and the entire team is focused on assuring that our residents receive high-quality, compassionate care."

Ageism, Prevalent and On the Rise, Impacts Estate Planning

When counseling clients regarding estate planning designed to protect assets and decision-making, among the most insidious risks are those arising from discrimination. Many clients are unaccustomed to considering ageism, and many are unaccustomed to considering themselves vulnerable to discrimination.  Educating clients regarding how ageism impacts them, for example, in legal determinations of incapacity and incompetence, is imperative to effective comprehensive planning.  

Unfortunately, the challenge of ageism is  not getting easier. In fact, at least according to an article in the Washington Post, the fight against ageism is a losing battle: 

"At a time when conditions have vastly improved for women, gay people, disabled people and minorities in the workplace, prejudice against older workers remains among the most acceptable and pervasive “isms.” And it’s not clear that the next generations — ascendant Gen Xers and millennials — will be treated any better."

Ageism, which is not a new phenomenon, is explored from several perspectives in the Washington Post article.  The bias is so common we frequently don’t recognize it. Todd Nelson, a psychology professor at California State University at Stanislaus, singled out birthday cards as one bellwether of the pervasiveness of prejudice for portraying advancing age as something to be ashamed of, with a tone that would never be used with race or religion.  

Internet memes like the “Scumbag Baby Boomer” and “Old Economy Steve,” which lambast boomers for transgressions from failing to adopt technology to causing the wars and recessions that millennials have weathered, channel resentment against an entire category of people in ways that might not be tolerated if they were members of another protected class.

But the article warns that "[t]his cultural backdrop has horrifyingly real consequences for many on the wrong side of 40. Formal age discrimination cases...spiked during the most recent recession and haven’t fully subsided. Long-term unemployment, defined as being jobless for 27 weeks or longer , is markedly worse for workers over age 55 than for the general population.  In contrast to the respect often accorded to the generation that fought World War II, their progeny are facing relative hostility in their senescence."

The article describes recent evidence:

"In a 2015 survey by the Harris Poll, for example, 65 percent of boomers rated themselves as being the “best problem-solvers/troubleshooters,” and only 5 percent of millennials agreed. Fifty-four percent of millennials thought boomers were the “biggest roadblocks.” Sometimes these perceptions come straight from the top: Facebook founder Mark Zuckerberg once said “young people are just smarter.”

Those attitudes apply not just to perceptions of “old” people, but also to expectations: A 2013 experiment found that young people looked more favorably upon older adults who “act their age” by listening to Frank Sinatra over the Black Eyed Peas, or by being more generous with their money. One of the researchers, Michael North, an assistant professor at New York University’s Stern School of Business, says younger people tend to resent it when older workers don’t “get out of the way” and retire.

The article describes that the bias is so pervasive that, unlike with those facing similar forms of discrimination, it is the affected population that is often expected to resolve or mitigate the the effects of discrimination, by, for example, modifying their behavior, wardrobe, or methods or means  of communication.  The article surveys the laws that protect seniors, and those that protect against age discrimination, but concludes that these have been ineffective, in part because markets and institutions depend upon, and perpetuate bias, and in part because the bias is so pervasive that identifying and eradicating it in specific situations is almost impossible.  

CMS Releases Ratings for Hospitals

The Centers for Medicare and Medicaid Services (CMS) recently published the much-anticipated Overall Hospital Quality Star Ratings, which will help consumers make decisions regarding competing health care institutions.  

The ratings, explained here, are a composite metric of one to five stars, with five being the best. They intend to convey the overall quality of nearly 4,000 hospitals in the U.S. In grading hospitals on their overall quality, the CMS used 64 measures, such hospital-acquired infection rates or emergency room wait times, that had already been posted to the Hospital Compare site. It grouped those measures into broader categories, then weighted them. Hospitals had to meet minimum reporting requirements in order to be eligible to receive a star rating.

"These easy-to-understand star ratings are available online and empower people to compare and choose across various types of facilities from nursing homes to home health agencies," Dr. Kate Goodrich, director of the Center for Clinical Standards and Quality at CMS, wrote in a blog post announcing the star ratings' release.

Hospitals and other industry groups have criticized the rating system as oversimplifying a complex matter—the quality of a multi-faceted institution—and the underlying methodology as flawed. They warned it would provide inaccurate information to consumers and damage hospitals' reputations.  As a result, CMS delayed for a time release of the rating system. 

The American Hospital Association said in a press release that it was "disappointed" the CMS decided to release the ratings. "As written, they fall short of meeting principles that the AHA has embraced for quality report cards and rating systems," its president, Richard Pollack, said in a statement Wednesday. "We are especially troubled that the current ratings scheme unfairly penalizes teaching hospitals and those serving higher numbers of the poor."

On average, safety net hospitals hospitals earned slightly lower ratings, with a mean of 2.88 stars, than did non-safety net hospitals, which garnered an average rating of 3.09 stars, according to distribution data released Thursday by CMS.

Just 102 institutions out of 4,599 hospitals, or 2.2%, earned five stars. Of the rest of the hospitals, 20.3% garnered four stars, 38.5% received three, 15.7% earned two stars and 2.9% received a single star. A significant proportion—20.4% of hospitals—were deemed ineligible for ratings, because they lacked data to report measure results.

"This does not necessarily mean that a hospital did not report any data, or that a hospital provides poor quality care," Aaron Albright, CMS's director of media relations, said in an email. "The facility could be new or small, or have an insufficient number of cases reported."

CMS currently uses star rating systems as quality indicators for nursing homes, Medicare plans and dialysis facilities. Some of those, too, were not without controversy. When CMS published the metric for nursing homes in 2009, industry groups pushed back. Later, an investigation of the system by the New York Times found that many of the metrics that went into nursing home ratings were incomplete and sometimes misleading.

Resident's Death Caused By Nursing Home Failing to Follow Advanced Directives Requesting CPR

According to McKnight's, an Illinois nursing home has been cited and fined $25,000 after nursing staff failed to follow an advance directive regarding cardiopulmonary resuscitation, resulting in the death of a resident.

The incident occurred in March when an unnamed female resident at Belleville, IL-based Willowcreek Rehab & Nursing was found unresponsive. The facility's staff attempted to revive her, until they were stopped by another staff member who said the resident's medical records included a “do not resuscitate” order. Efforts to save the patient were ceased, and she died.

After an investigation by the Illinois Department of Public Health, officials reported the staffer had misread the resident's chart. With “full code” listed under the woman's DNR preferences, she should have been resuscitated.

In addition to medical charts, the 122-bed skilled care facility posts different colored dots outside the door of each room in the facility to inform staff members of each resident's resuscitation wishes. Green dots are hung to indicate CPR can be used, while red dots signify a DNR order. The staffer, who has since been fired from the facility, told the IDPH she was unaware the system was in place.

Interviews with additional members of the staff revealed that several others had not been given any formal training on the facility's dot system. Since the incident, all current staff members have received training regarding code status policy and advance directives, according to the IDPH.