Good Care Is the Best Medicine for Alzheimer's

Lou-Ellen Barkan, President and CEO of the New York City Chapter of the Alzheimer’s Association, writing in the Huffington Post Blog, makes a very poignant observation: "in the absence of an effective therapy for [Alzheimer's Disease], effective care remains the best therapy."

She continues:

And providing quality care has never been more important. Today, Alzheimer's disease is the sixth leading cause of death in the United States and the only cause of death among the top 10 that cannot be prevented, cured, or even slowed. Right now, 5.3 million Americans have this deadly disease - more than a quarter of a million right here in New York City. By 2030, without treatments or a cure, nationwide, this number will skyrocket to 13.8 million.

Worldwide, top researchers, scientists, and medical professionals at renowned hospitals, universities, research centers, and pharmaceutical companies are working day-in and day-out to discover the causes, to develop effective treatments, and to find a cure for Alzheimer's and related dementias. Whether they are investigating beta-amyloid plaques, tau protein tangles, genetics, the effect of environment or lifestyle, their dedication is unparalleled. 

And while great strides have been made over the past decade in diagnostics - allowing us to get help earlier to those who need it most - Alzheimer's research remains poorly funded in comparison to other diseases with far fewer patients. For instance, total funding allocated by the National Institutes of Health (NIH) for HIV/AIDS research dwarfed the funding for Alzheimer's in 2014 (almost $2.978 billion vs. $562 million), yet almost five times as many Americans today are living with Alzheimer's than HIV (1.1 million). In the absence of an effective therapy, our focus MUST be on care. 

For more than 30 years the Alzheimer's Organization, nationally, and through Local Chapters like the one headed by Ms. Barkan, have provided compassionate care and life-saving support for hundreds of thousands of  with dementia and their caregivers.  Among these is the groundbreaking wanderer's safety program developed by the Mew York Chapter's own Jed Levine in the early 1990s, which became one of the prototypes for the nationwide MedicAlert® Foundation + Alzheimer's Association Safe Return® program.

Seniors, their families, and caregivers can support and implement these caregiving efforts through good financial and estate planning.   

Nursing Home Resident Disqualified for Transfer of Assets Eligible for Undue Hardship Exception

A New York appeals court recently held that a nursing home is  eligible for the undue hardship exception to a Medicaid penalty period, even though the home had not filed to, or threatened to evict her, because she was insolvent and unable to recover the assets, and because no other nursing home would accept her. Matter of Tarrytown Hall Care Center v. McGuire (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2849/12, April 16, 2014).

Margaret Traino lived at Tarrytown Hall Care Center from June 2008 until her death in April 2011. She was insolvent and subject to a Medicaid penalty period due to a transfer of assets for less than fair market value. The nursing home applied to the state to receive Medicaid reimbursement for the penalty period under the undue hardship exception.

The state denied the nursing home's application, ruling that the facility failed to show that Ms. Traino was unable to receive appropriate medical care without Medicaid because it did not attempt to evict Ms. Traino. The nursing home appealed.

The New York Supreme Court, Appellate Division, set aside the state's decision, holding that there is no requirement that a nursing home commence an eviction proceeding in order to prove undue hardship. According to the court, the nursing home showed that Ms. Traino "was unable to obtain appropriate medical care without the provision of Medicaid by offering proof that the decedent was insolvent and unable to recover transferred assets, and that no nursing facility which could provide her with the necessary level of care would accept her."

For the full text of this decision, go here.

Nursing Home Residents Twice as Likely to Suffer Fractures

A Canadian survey has revealed that older adults living in long-term care facilities are more than twice as likely as their peers living at home to suffer a fracture.  New guidelines endorsed by the Scientific Advisory Council of Osteoporosis Canada provide guidelines designed to reduce the risk.  The guidelines are similar to those those made by the Society for Post-Acute and Long-Term Care Medicine in the U.S., and those for residential care facilities in Australia.

Go here to read the original article in The Hospitalist.

The "Residents' Bill of Rights" is NOT the Residents'-- Federal Nursing Home Act Creates NO Private Causes of Action

A Federal District Court has ruled that the Federal Nursing Home Reform Act, which among other things requires the provision of certain services to each resident, does not create a private cause of action.  The Act is most widely known for creating the Residents' Bill of Rights, but apparently, the right to seek redress for injury or loss resulting from the failure of a nursing home to enforce these rights is not among them.

The Plaintiff, Joanne Fiers' filed a claim after the death of her brother, Richard Bendel, while he was a resident at Lakeview Health Center in West Salem, Wisconsin. Bendel, suffered from severe dementia and was a known elopement risk; he therefore required increased supervision.  Bendell left the facility unattended, fell and suffered injuries that led to his death in February 2014.  A certified nursing assistant watched Bendel walking toward one of the facilities exits, but failed to do anything to prevent his leaving.  Two other certified nursing assistants allegedly ignored an audible door alarm as Bendel exited the facility. After he exited, Bendel walked across a roadway, tripped on a curb, and fell, sustaining critical injuries from which he would succumb four days later.  

Several days later, the Wisconsin Department of Health and Human Services investigated the "elopement incident."  The facility was cited with an "Immediate Jeapardy Violation."  

In addition to seeking compensatory and punitive damages for pain and suffering as a result of the nursing home's negligence, Fiers also alleged that Lakeview violated Bendel's resident rights under Section 1983, rights set forth in the  Federal Nursing Home Reform Act (which includes but is not limited to the Residents' Bill of Rights).

The U.S. District Court for the Western District of Wisconsin ruled Section 1983 does not create a right of redress because FNHRA does not create private, enforceable rights for residents, and further that Fiers' complaint failed to identify specifically the rights that Lakeview violated. In order to allege a deprivation of rights under the FNHRA, the court ruled that Fiers was required to show that FNHRA was meant to benefit residents in a way that was not  “vague and amorphous."  No penumbra of a right to adequate health care, or a logical extension of rights and remedies, is countenanced by the court's opinion.

The Act, the court explained, was written to describe what a nursing home has to do to receive government funding, not what rights it is required to provide residents. Apparently the "Residents' Bill of Rights," would have more aptly been called, the "Nursing Homes' Obligations For Federal Funding Without Regard to Residents' Rights, Privileges, or Redress."  Yes, that is much clearer.  

The court granted Lakeview's motion to dismiss Fiers'  Section 1983 complaint.

The Plaintiff will, of course, continue to pursue her claims for negligence against the facility, but will have to do so in state, rather than federal court. In some states, citations against a nursing home for violating standards of care are not admissible in court.        

To read the court's opinion, go here.

To read the McKnight's article about the case, go here.

California Elder Abuse Law Protects Only Residents

A California appeals court has ruled that an 85-year-old man is not a protected elder under the state’s financial elder abuse law because he does not reside in California. Galt v. Wells Fargo Bank, N.A., (Cal. Ct. App., 2^nd Dist., No. B261792, Sept. 21, 2015).

Randolph Galt, who is 85 years old, lives in Australia and Washington State. Mr. Galt is one of the income beneficiaries of a trust established by his grandfather in California. Wells Fargo Bank is the trustee. After Mr. Galt delegated investment decisions for the trust to a new investor, the investor was not able to make changes to the trust and the value fell from $26 million to $13 million.

Mr. Galt sued the bank for financial elder abuse under a California state law, arguing that the bank intentionally refused to allow the new investor to make decisions for the trust. The trial court ruled that Mr. Galt did not have standing to pursue the claim because he did not meet the definition of "elder" under the state law. The state law defines an "elder" as anyone 65 years of age or older who is residing in the state. Mr. Galt appealed.

The California Court of Appeals affirmed, holding that Mr. Galt does not have standing to pursue a financial elder abuse claim under state law. According to the court, "by his own admission, [Mr.] Galt does not reside in this state; consequently, under the plain meaning of the statute, he is not an elder."

For the full text of this decision, go here.

Senators Seek To Ban Arbitration Clauses in Nursing Home Admission Agreements

McKight's reports that a group of senators urged the Centers for Medicare & Medicaid Services (CMS) to ban arbitration clauses inserted into nursing home admission contracts, because they do not adequately protect residents' rights.

The letter, signed by 34 Democrats including lead signer Sen. Al Franken (D-MN), said recent efforts by CMS to improve resident awareness of arbitration clauses are “well-intentioned,” but ultimately complicate any future disputes and fail to improve safety. Language aimed at improving resident awareness of the clauses was included in July's proposed rule for long-term care facilities.

The senators recommended CMS prohibit the use of binding pre-dispute arbitration clauses in nursing home contracts in order to “ensure that residents and their families are not deprived of their rights.”

“All too often, only after a resident has suffered an injury or death, do families truly understand the impact of the arbitration agreement they have already signed,” the letter states.  

The letter stresses that nursing home residents and their families should only enter into arbitration agreements after an incident has occurred, allowing them to consider all of their legal rights.

Clif Porter, senior vice president of government affairs and public policy at the American Health Care Association, said his organization disagrees with the views expressed in the senators' letter.

“We believe this is a matter Congress has already addressed through the Federal Arbitration Act (FAA), and rulemaking on this issue is unnecessary,” Porter wrote in an email to Bloomberg BNA.

To read an excellent article from Oklahoma Watch, regarding these clauses, go here.  The article includes a copy of such an agreement with what some believe are onerous arbitration clauses.

To read an excellent position paper regarding arbitration clauses in nursing home admission agreements from the California Advocates for Nursing Home Reform (CANHR) which deconstructs the arguments supporting the clauses, go here. 

Habits Are Hard to Break: Nursing Homes Habitually Violate Federal Standards Year After Year

Coalition for Quality Care (CQC), along with Coalition member Voices for Quality Care, have conducted a new analysis of federal inspection records of nursing homes collected by the Center for Medicare and Medicaid Services (CMS).  Their analysis found that 44% of nursing homes were permitted to continue to take in new residents and receive public funds even after having repeat violations of the same quality of care standards three years in a row.  The analysis used historical inspection data to identify nursing homes that habitually violated the same minimum federal standards year after year.  Richard Mollot, President of CQC, said, "Unfortunately, this analysis confirms our collective experiences with nursing homes across the country.  Far too many people live in facilities where abuse and neglect continue year after year, with little or no effective intervention by regulators."

“We hope that state leaders, regulators and attorneys general, as well as CMS, will use these data to identify and address persistent failures to protect nursing home residents, said Mollot. “Problems should not be allowed to persist and fester.  The fact that so many nursing homes have the same quality of care deficiencies year after year should be a wake-up call to everyone concerned about the safety of nursing home residents, no matter the use of public funds on services that are worthless or harmful.”

For more information, including the data analyses for each state (listing nursing homes with three-year repeat deficiencies), go here.

To read CQC's press release, go here.

Man Can't Challenge Discharge of Brother's Debt for Mom's Care under Filial Responsibility Law

A U.S. district court has affirmed a bankruptcy court's decision that a man cannot prevent the discharge of his brother's debt owed to their mother's assisted living facility under Pennsylvania's filial responsibility law because the man was not a creditor of his brother. In re: Skinner (U.S. Dist. Ct., E.D. Pa., No. 14-6697, May 27, 2015).

Dorothy Skinner lived in an assisted living facility until she was evicted for non-payment. The facility sued Ms. Skinner's sons, Thomas and William, under Pennsylvania's filial responsibility law. The court entered a default judgment against Thomas for $32,224.56. Thomas filed for bankruptcy and sought to discharge the debt.

William filed a claim in the bankruptcy court, arguing that Thomas's debt was non-dischargeable because it resulted from fraud and embezzlement. William argued that Thomas used their mother's assets for his personal expenses, so if William was liable to the assisted living facility, he was entitled to be reimbursed by Thomas.  A U.S. bankruptcy court dismissed the claim, holding that William did not have standing because he was not a creditor of the debtor.

The U.S. District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's decision, holding that William is not a creditor of Thomas. According to the court, Pennsylvania's filial support law does not provide for contribution or reimbursement, so it does not give William a claim against Thomas.

For the full text of this decision, go here.

For a prior article about this case, go here.

To read more about filial responsibility, go here, here, here, here, and here.  

CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations

Another revelation supporting the wisdom of an Aging-in-Place philosophy: Healthcare personnel working in long-term care settings have the lowest rate of influenza vaccine coverage according to the Centers for Disease Control and Prevention (CDC).   An article in McKnights reports that the CDC estimates that only 64% of long-term care workers received a flu vaccine during the 2014-2015 flu season, despite its urging that all healthcare workers receive a vaccine. The CDC estimated that 77% of all healthcare personnel, including medical and nonmedical staff, reported receiving a vaccine. Hospital workers reported the highest amount of vaccine coverage at 90%.

The long-term care industry is facilitating lower than average vaccination rates; long-term care workers were also the least likely to report that their employer required vaccination, or made vaccinations available to employees on site.  Moreover, vaccination rates are lowest among the very workers most frequently in contact with residents and patients.  A high percentage of workers in long-term care facilities are assistants or aides (61 percent) and this occupational group has the lowest coverage rate regardless of where they are employed.

Each season, flu causes millions of illnesses, hundreds of thousands of hospitalizations and thousands or sometimes tens of thousands of deaths. The rate of flu-related hospitalizations for people over 65 last year was the highest it had ever been, officials said. During a National Foundation of Infectious Diseases press conference on Thursday, officials urged healthcare workers to get vaccinated, especially those working with older adults.

To read other articles regarding the risk of infections in long-term care or skilled nursing facilities, go here and here.

To read an article about a new rule impeding transfers of elderly patients to hospitals, go here.

No Good Deed Goes Unpunished? Caregiver Exemption Does Not Apply When Medicaid Recipient Is Receiving Home Care

When describing the anomalous decisions, rules, and results arising from Medicaid law, I often find myself explaining particular outcomes as another illustration of the "no good deed goes unpunished rule."  Of course, there is no such rule, and the characterization is an exaggeration.  Still, there are plenty of examples one can identify of the "rule," among them a new case arising from the State of New Jersey. 

The case has some pretty compelling facts.  G.B. was a senior recipient of 30 hours a week of in-home care through a Medicaid waiver program. G.B.'s daughter, M.B.-M. also lived with G.B. and helped to care for her.  Of course, there was care needed since the in-home care G.B. received from Medicaid constituted less than twenty percent of the weekly time for which care was necessary.  Ostensibly, the daughter M.B.-M. either personally provided or arranged and managed such care.  

G.B. sold her house to M.B.-M. and received a profit of $27,320.29.  Rather than simply gifting the entire home to the daughter, and the daughter receiving all of the proceeds, they entered into a more nuanced transaction benefiting both mother and daughter.  G.B. reduced the net proceeds of the sale she could have received by crediting M.B.-M. $42,000 in equity as a gift. One can assume that the transaction was recommended to free assets for G.B., and to immediately qualify her for Medicaid in the event that institutionalization became necessary.  Perhaps the motivation was, or included intent to compensate M.B-M. for her responsibility.  Regardless, they must have been comfortable in the legality of the transaction given that transfers of a home to a care giving child are specifically permitted by Medicaid.  By permitting transfer of a home to a child caregiver, the law  encourages a family to provide care that will keep a loved one out of a skilled nursing facility, and of course, off of the growing list of Medicaid recipients requiring long term institutional care. Despite the daughter's sacrifice for her mother, and it's benefit to the state, when Medicaid discovered the transfer, it deemed the transfer improper, and imposed an improper transfer penalty, meaning that G.B. was not eligible for benefits for a period of time.

G.B. appealed, arguing that the transfer of the home equity to M.B.-M should be exempt because it was a transfer to a caregiver child. After a hearing, the administrative law judge (ALJ) agreed.  The state, nonetheless, rejected the ALJ's conclusion, ruling that M.B.-M was not a caregiver child because in receiving 30 hours of care per week, G.B. was legally an institutionalized individual.  Yes, that's right; because she received a Medicaid waiver providing care in her home for a quantity of time that would be considered a part-time job, she was legally institutionalized!  Following G.B.’s death, M.B.-M, her executor,  appealed pro se (meaning without the benefit of counsel).

The New Jersey Superior Court, Appellate Division, Estate of G.B. ex rel. M.B.-M. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., A.D., No. A-5086-12T1, Sept. 15, 2015). shockingly affirmed the state's decision, holding that the caregiver exemption does not apply. According to the court, the 30 hours of care a week that G.B. received was the functional equivalent of being an institutionalized individual. The court ruled that "although [M.B.-M] cared for her mother during the relevant time period, the key factor that permitted G.B. to remain in her home until 2009 was the Medicaid assistance she received through the services provided by the [state]."  

 So, an in-home Medicaid waiver recipient's gift of her house to her daughter does not fall under the caregiver exemption because the reason the mother was not in a nursing home was due to the in-home Medicaid benefits she received for care 30 hours a week, and not her daughter's care the other almost 170 hours a week (note, by the way that if she slept 10 hours a day, during which arguably there was no care need, that still left nearly 100 hours a week for which the daughter remained responsible).  No good deed goes unpunished?   At a minimum, the holding will cause families pause when relying upon the caregiver exemption; perhaps that is the intent of the state's position.  

There is a possible explanation for such a narrow reading and application of the caregiver exemption the State of New Jersey.  New Jersey is a  filial responsibility state.  See, e.g., NJ Rev Stat § 44:4-102 (2013).  Only time will tell whether the State is moving to enforce its filial responsibility law in order to force children to pay for the care costs of their indigent parents.  Looking at the case from a "filial responsibility" perspective, the daughter's care was her legal responsibility, meaning that it was only the state that did anything extraordinary by providing home care for thirty hours a week  Such a view would explain the court's dismissiveness of the daughter's care, and the elevation of the state's benefit. 

At any rate, with filial responsibility in play, the transfer of the proceeds from the sale of the house would have remained available to the state in resource recovery.  Collecting the proceeds by imposing an improper transfer penalty was simply a more efficient mechanism for the the state to minimize its cost and expenses. This supposition is, upon first consideration admittedly "far fetched," but we submit is no more "far fetched" than the state's keeping from a caregiving daughter some morsel from the sale of the home to which she would have seemed obviously entitled.  

For the full text of this decision, go here. 

Note: We have added a label for "No Good Deed Goes Unpunished."