NYT: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."

The headline of a  recent New York Times article posed succinctly the challenge nursing home rating systems present to an unwary public: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."  The subtitle to the article indicts the industry: "Nursing homes have manipulated the influential star system in ways that have masked deep problems — and left them unprepared for Covid-19."  The role of government, from benign neglect, incompetence, and/or complicity, is also discussed in the article.

The article is rich with examples of institutions with fundamental problems and flaws that nonetheless attain "high marks" and good ratings, masking dangers and risks to unwary consumers.  For readers of this blog, this reality is not revelation.  The case for aging in place could not be more profound.

The article is largely reprinted below [tables, pictures, and graphics omitted]:  

Transfer of Home to Caretaker Child Effective Even Where Child Works Outside Home

Medicaid rules permit a senior to transfer a home to a child that has establishes residence in the home and provides care necessary to age in place for a two year period.  But the question arises, must the caretaker child devote all of his or her time to the care?  While a rational reading of the statute would suggest no requirement of full time care, and no restriction against outside work,  controversy can arise, and did in a recent New Jersey case.  

Fortunately, New Jersey ultimately interpreted the rule rationally.  The New Jersey appeals court recently held  that a Medicaid applicant’s transfer of her interest in her house to her son qualifies for the caretaker child exemption even though the son worked outside the home and hired aides to help care for his mother. See, A.M. v. Monmouth County Board of Social Services (N.J. Super. Ct., App. Div., No. A-5105-18, March 11, 2021).  Unfortunately, the result was not easy, and was attained only after a protracted legal battle.

The son lived with his mother, and worked as a teacher. Mom transferred two-thirds of her interest in her home to her son and her daughter while retaining the remaining one-third interest. When mom was diagnosed with Alzheimer’s disease, the son arranged for caregivers to assist him with providing care for his mom while he was at work and paid the aides from mom's assets.  Mom transferred her one-third interest in her house to him. Mom eventually entered a nursing home and applied for Medicaid. A doctor’s report stated that without the son's care, the mom would have entered the nursing home sooner. The Medicaid agency, nonetheless,  imposed a penalty period based on mom’s transfer of her one-third interest to A.M.

The son requested a hearing, arguing that the transfer was exempt under the caretaker child exemption. An administrative law judge (ALJ) found that the care the son provided his mother went beyond the personal support a child is expected to provide and approved the exemption. The Medicaid agency reversed the ALJ’s decision, however, concluding that because the son had aides provide care for his mother and paid for the care out of her funds, the transfer was not exempt.  

Understand the hypocrisy of the State's position here.  The exemption is specifically designed to encourage  a child to take care of their parents by permitting transfer of the home to them for doing so, where that care prevented institutional care.  The State is essentially argues that if the child has a life beyond caregiving for the parent, and manages care for the mother through other caregiver's in order to ensure the highest continuity and quality of care, the child cannot be rewarded for the child's service. The State's position is essentially that a child can receive the benefit of the exemption only if the child devotes full time to caregiving, and more, refuses to engage paid assistance, potentially diminishing the quality of care provided.  The State would bristle at the suggestion that its position encourages compromise to quality and safety, but is that not precisely the State's position?   

Understandably, the son appealed.  he New Jersey Superior Court, Appellate Division, reversed, holding that the transfer is exempt under the caretaker child exemption, ruling that there is nothing in the law preventing a caretaker child from working outside of the home or hiring aides to assist with caregiving. The court determined that there was ample evidence that before and after work, the son provided care beyond that normally expected of a child. According to the court, the “intent of the regulation – to encourage children to make the necessary arrangements to care for a parent in their home to avoid the public expense of institutionalization – would not be furthered by a requirement that the child caregiver work only a limited number of hours outside the home or earn no more than a particular income.”

The case represents an excellent result for aging in place proponents that is only diminished by the  lengthy legal battle the son had to endure to attain the result.   

Importance of Senior Tax Deduction Returns in 2021

A tax break for seniors that all but disappeared last year has resurface this year. This tax break benefits retirees in their 70s and up. These tax breaks are qualified charitable distributions (QCD), "which allow individual retirement account holders to divert some of their federally taxable required distributions to charity." The deductions allow IRA holders to make donations and reduce their federally taxable income. 

The pandemic limited the effectiveness of this deduction last year.  The Cares Act effectively cancelled required minimum distributions (RMDs).  Even though you could still use QCDs, their effectiveness was almost completely eliminated due to the cancellation of RMD requirements in 2020:  those who didn't want the taxable income could simply forego the RMD, and thus, there was no need to take take advantage of the QCD.

Now, retirees can take advantage of these contributions. However, if considering QCDs, you should consult with your financial or tax  advisor to discuss the best way to take advantage of these contributions, or possibly to stay away from them.  There are limitations and possible pitfalls. 

For more information, go here.

Source: Allan Sloan, "A tax break for retirees is back. Here’s how to use it — and what to avoid," Washington Post, March 18, 2021. 

Lottery Winnings Hell?

Everyone knows that winning the lottery can kill you; whether from crime or wanton excess, lottery winning related death is well known.  But there are just possibly states of existence worse than death. 

Marie Holmes, a 26-year-old single mother of four was working two jobs when she won the lottery.   Holmes had one of three winning tickets, entitling her to receive a third of a $564 million pot,  Her ticket was worth hundreds of millions of dollars.

 Holmes had the choice of either receiving the money as a lump sum ($127 million) or a total installment amount of $188 million. Understandably, Holmes elected the lump sum. 

With the winnings, Holmes planned to make donations to her church, buy a house, and set up college funds for her kids. Unfortunately, included in the expenses would be substantial tax payments. 

Soon after Holmes' windfall, the media began portraying her as a "frivolous and foolish person" based on how she spent her prize money. On top of that, it became difficult for Holmes to keep a low profile.

Holmes, like many of us would in the same situation, began spending lavishly and even began spending money on her boyfriend and his bail, payments which soon exceeded $21 million.  Since winning the lottery, Holmes, herself, had been arrested for possession of marijuana following a search of her house pursuant an arrest of her boyfriend. Holmes and her family, thereafter, fell victim to racism from their mostly white neighbors. 

Compounding Holmes' troubles, her relationship with her local church pastor soon fell prey to greed.  Holmes' Pastor allegedly asked her for $1.5 million "to build a retreat." According to the  Pastor , Marie verbally agreed to give him that $1.5 million. Matthews eventually brought a lawsuit against Holmes for $10 million which represents ten percent (10%) of her winnings.  After all, she originally promised to give to the church. Matthews brought the suit despite Holmes' previous gift of $700,000. 

Eventually, Holmes' had to start paying of her boyfriends mistresses to leave him alone.

Holmes eventually turned to a show on Oprah Network to obtain some financial advice, but that avenue failed as well. 

There is one bright spot in Holmes' story, Holmes persevered and successfully created the Marie Holmes Foundation which helps poverty stricken families. 

Source: Gur Tirosh, "The Disaster of the Big Fat Lottery Win," Living Magazine, last visited March 4, 2021. 

Biden Reverses Trump EO; Seniors Can No Longer Opt Out of Medicare

In October 2019, the Trump Administration issued an executive order allowing individuals receiving Social Security benefits to opt out of Medicare Part A coverage (E.O. 13890, Sec. 11).  In January 2021, the Biden Administration withdrew the Trump order, thereby reestablishing that Social Security benefits may not be severed from Medicare Part A coverage.

This issue is complicated, and although it is typically framed as either an assault to or protection of Medicare, the facts underlying the issue are often misunderstood and misrepresented.  During President Obama’s administration, three retired federal employees – among them former Republican House Majority Leader Dick Armey -- sued the federal government because they wanted to drop their Medicare Part A coverage without losing Social Security benefits. They claimed participation in Medicare threatened their coverage under the Federal Employees Health Benefit (FEHB) program.

John Kraus, one of the plaintiffs in the original suit, explained to ElderLawAnswers that “[t]here isn't any law, statute, or regulation that memorializes in the U.S. Code this linkage of the two programs. It is only found in the Social Security Administration's (SSA) Program Operations Manual System (POMS).”

When asked why he and his fellow plaintiffs wanted to separate from Medicare, Kraus explained that  the reasons

“are several.  The foremost is that one enrolled in Medicare cannot have a High Deductible Health Plan with a Health Savings Account. Secondly, for FEHB participants, their coverage becomes secondary to Medicare, without a premium reduction for FEHB coverage. Third, there is the issue of Medicare solvency, which could be a serious consideration in the near future. Lastly, there is the consideration of reduced choice and availability of health care providers because they are either leaving the Medicare program or not accepting additional Medicare recipients as new patients.”

A U.S. district court judge dismissed the case in March 2011, a decision that was upheld the following year by a three-judge panel of the U.S. Court of Appeals for the District of Columbia, with then-judge Brett Kavanaugh writing for the majority that the federal statute offers the plaintiffs no path to disclaim their legal entitlement to Medicare Part A benefits.  The U.S. Supreme Court declined to review the decision.  Of course, the decision had nothing to say about whether such a path should exist, or indeed, about the merits or concerns the individual litigants raised. 

At the time the 2019 executive order was issued, the Center for Medicare Advocacy noted that allowing individuals to access Social Security benefits without participating in Medicare Part A coverage had been a "long-standing conservative goal" and could potentially damage the program:

“Allowing individuals who can self-fund their health care to decline Medicare erodes shared experiences, commitment to, and investments in our nation’s flagship insurance program, and therefore can erode widespread, popular support for the program and make it more susceptible to negative changes.” 

The group also stated that the Medicare risk pool would be fundamentally altered if healthier and wealthier people were permitted to opt out, but since Medicare is not private insurance one wonders why "risk pools," are even relevant. 

Regardless, separation from Medicare is no longer possible.   

Esther's Law Protects Ohio Seniors in Nursing and Rehabilitation Institutions by Permitting Cameras and Monitoring

Residents of Ohio’s nursing homes are permitted to place electronic monitoring devices in their rooms. “Esther’s Law” went into effect on March 23, 2022, after passing unanimously through the Ohio House and Senate and being signed by Governor Mike DeWine on December 22, 2021. This bipartisan legislation demonstrates that ridding Ohio is committed to reducing elder abuse generally, and particularly in institutions charged with caring for Ohio's vulnerable elderly residents. 

The genesis of Esther’s Law (Ohio Revised Code § 3721.60, et seq.), was a shocking video depicting the abuse of the bill’s namesake, Esther Piskor, at the hands of her nursing home care providers. Esther’s son Steve Piskor suspected his mother was the victim of abuse in an Ohio nursing home. In September 2011, Steve placed a hidden camera in his mother’s room which caught and documented six weeks of abuse. Nurses and aides threw Esther around the room, sprayed her in the face with unknown substances, and yelled at and neglected her. Mr. Piskor has since worked to ensure Elder Abuse will be driven out of Ohio’s nursing homes.

The law allows a nursing home resident, the resident’s guardian, or the resident's agent under a power of attorney, to authorize the installation of an electronic monitoring device in the resident's room under the following conditions: (1) the resident or the resident’s representative completes and submits a form to the facility, if the facility prescribes a form for the device and (2) the resident pays for the cost of the device and its upkeep. A resident may withdraw authorization at any time.

If the resident has a roommate, the consent of the other resident is required before any monitoring device may be installed. The roommate may consent based on certain conditions, such as agreed upon angling of the device, or limitations as to the use of the device. Devices must be installed and used in accordance with the consent of all residents residing in the room.

Nursing home operators and their staff should also be aware that the law requires reasonable attempts to accommodate residents to be made where a resident wishes to install an electronic monitoring device, but a roommate refuses to consent. Reasonable accommodation expressly includes moving the resident to another room where installation would be permitted if available.

The scope of Esther’s Law is currently limited to “long-term care” facilities defined as nursing homes and skilled nursing facilities and currently does not extend to assisted-living accommodations that do not meet the “long-term care facility” classification.  State legislators have indicated, however, that the scope of Esther’s Law may expand to other types of facilities in the near future.

Steve Piskor and the State Senators sponsoring Esther’s Law state that the goal of the law is to prevent abuse in the first instance, and not to be a reactive tool after abuse has occurred. This goal is made clear and is served by the law permitting long-term care facilities to place notices outside of the resident’s room to notify others that electronic monitoring is taking place.  In other words, the law is not intended to encourage secretive monitoring merely to encourage or facilitate litigation.

The law also prohibits any denial of admission, discharge, discrimination, or retaliation based on a resident’s decision to exercise the right to install an electronic monitoring device.  

Obviously, seniors and family members should seriously consider the use of such devices.  Keep in mind that even inexpensive and relatively unreliable devices will result in the placing of a notice that a device is electronic monitoring is taking place. Many home residents and merchants purchase signs advising that security systems and electronic surveillance exists, even where no such systems or devices are employed; deterrence is the first goal of any security or safety system or plan. 

SNF COVID Crisis Over? SNF COVID Deaths Fell 66% in Wake of Vaccine Clinics as Overall U.S. Fatalities Rose 61%

After a year of remarkable tragedy in nursing homes, a new analysis of federal COVID-19 data shows a significant drop in resident deaths in the weeks after vaccine clinics began, a trend made even more striking given the simultaneous spike in U.S. coronavirus deaths over the same period. The detailed analysis, courtesy of the Kaiser Family Foundation (KFF), paints a much-needed portrait of the COVID-19 pandemic as it has impacted, and continues to impact long-term term care facilities (LTCFs).  According to KFF, the final months of 2020 were the deadliest months of the pandemic for many LTCFs across the country, with over 26,000 COVID-19 deaths in LTCFs reported between Thanksgiving weekend and December 31, 2020. 

The end of 2020 saw the approval of the first coronavirus vaccines and the launch of vaccine administrations in LTCFs through the Pharmacy Partnership for Long-Term Care on December 21st, 2020 (Pfizer-BioNTech) and December 28th, 2020 (Moderna). As of February 22, 2021, about 4.5 million residents and staff have received one or more dose through the Partnership; over 2 million residents and staff have received both doses. In addition, some states and some LTCFs have vaccinated residents or staff outside the Partnership. Vaccinations have increased outside of LTCFs as well, though at a significantly lower rate. 

Weekly deaths in nursing homes fell 66% between the last week of December, when the federal government’s long-term care vaccination partnership with CVS and Walgreens ground into gear, and the first week of February, according to the Foundation.  That decline nonetheless represents more than 2,000 fatalities, but it came as nationwide deaths, excluding nursing homes, spiked 61% to nearly 20,000 during the week ended February 7, prompting the Foundation to ponder whether the end of the crisis in LTCFs has finally come into view.

KFF stopped short of definitively concluding that the vaccine clinics were the direct cause of the drop, noting that not every facility started the inoculation process on the same day, but the general association is obvious.

“According to the CDC, there has been strong evidence that the vaccines prevent severe illness and death, and the sharp divergence in deaths inside and outside of LTCFs is consistent with that evidence,” KFF observed. “In addition, given the emerging research around the vaccines’ ability to prevent transmission of the virus, there is reason to believe that the vaccine may be playing a part in reducing virus transmission within nursing homes, contributing to the more rapid decline in new cases in nursing facility residents than in the overall population.”

Total case numbers in nursing homes dropped 83% in the post-clinic period, far outpacing the 45% dip among the general, non-LTC population. “While cases have dropped both within and outside nursing facilities, new nursing facility resident cases peaked earlier (week ending December 20, 2020) as compared to in the general non-nursing facility resident population (week ending January 10, 2021) and declined at a faster rate in nursing facilities than outside nursing facilities,” KFF noted.

The most recent data marks a swift turnaround from record-high death counts seen in LTCFs at the beginning of 2021.  One in every 51 residents of LTCFs died during the four weeks bookending New Year’s Day, for a grim total of nearly 20,000, according to an AARP analysis.

“While the record high death rate in the four weeks ending Jan. 17 represents only a slight increase from the previous month, when 1 in every 53 residents died from COVID-19, it is more than a quadrupling of the resident death rate at the end of the summer,” AARP noted.

The gains also came amid continued concerns about relatively low uptake of vaccines among nursing home staff. Only 37.5% of workers accepted vaccinations during the first month of clinics, according to the Centers for Disease Control & Prevention (CDC), as compared to 77.8% of residents.  Meanwhile the debate regarding mandating vaccines roils. 

Sources:

"Nursing Home COVID Deaths Fell 66% in Wake of Vaccine Clinics — Even as Overall U.S. Fatalities Rose 61%," Skilled Nursing News, February 25, 2021.

Is the End of the Long-Term Care Crisis Within Sight? New COVID-19 Cases and Deaths in Long-Term Care Facilities Are Dropping, KFF, February 24, 2021.  

England's NHS Saves Lives with World Leading "Dead" Heart Transplants

More than 3,000 heart transplants were performed in the United States last year, according to the federal Organ Procurement Transportation Network (OPTN). These 3,000-plus patients were given the gift of life through the selfless act of organ donation by individuals and families who were faced with the opportunity to make a positive impact in the wake of tragedy. 

This number is truly amazing; the first successful heart transplant was performed  a little more than 50 years ago. Since then, heart transplantation has become more routine,  almost considered as routine as a bypass surgery. With advances in transplant technology, more people are seeking heart transplantation.  Tragically, there simply are not enough donor hearts to go around.  

There are currently nearly 4,000 people across the U.S. awaiting donor hearts, according to OPTN data. Unfortunately, a significant number of patients die before suitable donor hearts become available for transplantation. To meet this ever-growing need, the medical community seeks new and advanced procedures and treatments for heart failure while educating healthy community members how truly life-changing the gift of organ donation is for recipients, donors, and their families.

Finding a healthy living heart suitable and available for donation is difficult.  What if, however, hearts that had stopped could be used in donation.  What was once though impossible or unlikely may someday be routine, thanks to the doctors in England's National Health Service (NHS).

Anna Hadley, a 16-year-old from Worcester, waited for nearly two years for a new heart. Now, almost two years later, Anna is healthy and playing hockey again. Anna has British surgeons to thank, as they "carried out the world's first transplants in children using dead hearts that were brought back to life." 

The surgeons used a pioneering machine to reanimate hearts from donors whose hearts stopped. So far, use of the machine has saved the lives of six British children ranging in age form 12 to 16. Each of the transplants occurred during the pandemic. 

Anna was the first to have her life saved by the pioneering machine. She received the call at 2:30am after she had waited almost two years after being diagnosed with restrictive cardiomyopathy. 

Within 24 hours of the operation, Anna was sitting up in bed. Within weeks, Anna was playing hockey again. Anna said, "I just feel normal again. There's nothing I cannot do now."

Source: Andrew Gregory, NHS saves children’s lives with world-first ‘dead’ heart transplants, The Sunday Times (U.K.), February 20, 2021.