Reforming Social Security with Child Caregiver Credits

The Center for Retirement Research at Boston College has released an issue brief entitled, "Modernizing Social Security: Caregiver Credits."  The brief opens with the following statement of the challenge presented by recent demographic changes:

Women still tend to work fewer years and earn less than men, which leads to less income in retirement. One reason is that women are often still the main family caregiver. Traditionally, Social Security has recognized this role by providing spousal and widow benefits for married women. Today, however, many women are not eligible for these benefits because they never married or they divorced prior to the 10-year threshold needed to qualify. Even those who are married are less likely to receive a spousal benefit, as their worker benefit is larger. Thus, many mothers receive little to no support to offset lost earnings due to childrearing.

Of course, the population for whom Social Security was designed looks much different than the population for whom Social Security must provide benefits.  Social Security was designed in the 1930s when, typically, the husband was the sole breadwinner and the wife a homemaker. The program included spousal and widow benefits designed for this standard one-earner household. Although these family benefits are not gender based, they typically worked to benefit women because women generally work fewer years and earn less than men. The ability of women to receive family benefits, however. has declined sharply in recent decades as their employment patterns and the nature of the family unit have changed dramatically. 

On the employment front, the labor force activity of married women has increased significantly, which means that women increasingly receive benefits based on their own earnings record, and are much less likely to receive spousal or widow benefits.  Despite their increased workforce activity, though, research suggests that women continue to be at a disadvantage in the labor market compared to men. Research suggests that part of the reason is caregiving duties, which can reduce work hours and affect access to better-paying jobs.   For example, women ages 25-44 – those most likely to have young children – work part time more often than men. Even when working full time, women earn only about 80 percent as much as men.

Contributing to the challenge of providing a fair benefit for women is that fewer women are eligible for Social Security family benefits due to patterns of marriage and divorce. The increasing divorce rate has resulted in about 25 percent of first marriages ending within 10 years, the eligibility threshold needed for access to family benefits.  These short-lived marriages, which comprise a greater number of total marriages, unfortunately, are excluded from access to family benefits under Social Security, despite the continuing financial burdens the marriages place upon the individuals involved.      

Childbearing among unmarried women has also increased sharply – from 18 percent of all births in 1980 to 40 percent today. These trends have sharply increased the percentage of households headed by single mothers, leaving a wide swath of women with no access to family benefits.  Compared with married mothers, single mothers face even more labor market constraints from their childcare responsibilities, further impeding their job prospects and reducing their ability to earn an adequate Social Security benefit.

Overall, the changes in labor market and marital patterns mean that large numbers of women are going to move through retirement with more disadvantages than their earlier counterparts. Not surprisingly, among those ages 65 and over, poverty rates for unmarried women exceed those of unmarried men,  and unmarried women account for one-third of all households ages 65-69 and two-thirds of households ages 85 and over. Childcare responsibilities are a major contributor to low income in retirement. One study found that women ages 65-74 who spent at least 10 years as a single mother were 55 percent more likely to be poor than continuously married mothers of similar education and ethnicity. 

Because of the poor outlook for retirement income among single women and a growing sense that the economic value of caregiving should be recognized, many policy experts have advocated caregiver credits.  The 10 page brief looks at how the topic is handled in other countries and discusses two avenues for resolution in the U.S.: (1) "[i]ncrease the number of work years that are excluded from benefit calculations ... [and] (2) [p]rovide earnings credits to parents with a child under age six for up to five years."  The brief argues for earnings credits for child rearing.

The brief concludes in part:

"It is easy to understand the appeal of crediting Social Security records to reflect lost earnings due to caring for a child. In the past, this activity was usually compensated for by the spousal benefit, but changes in women’s work and marriage patterns have left fewer eligible for it. A credit is also more appealing than a spousal benefit if the goal is to compensate for the costs of child rearing, independent of marital status."

Regardless to which cause or causes you attribute these changes, there is little question that the disparity, at least in outcomes among single women, is real.  Moreover, our society is evolving to value more "caregiving," whether or not familial, and regardless of the age or needs of the person requiring care.  Nothing could better underscore the real value of caregiving, especially for children, than the government recognizing a financial value for the effort in order to provide a more effective safety net for seniors. 

Particularly as the government struggles to find effective solutions for care and support, and individuals, families, and communities design and construct their own, often non-governmental solutions, these efforts should find encouragement and support.  In other words, the decision to value caregiving will not only impact retirement income for a vulnerable group of retirees, but will suggest promise in addressing the caregiving needs , demands, and realities, of both the elderly, and the someday-to-be-elderly family caregivers.  

The Importance of a "Lapse Designee" on Long Term Care Insurance

A U.S. district court has ruled that the purchaser of a long-term care insurance policy may sue for breach of contract the insurance company that failed to notify the purchaser's son, as required in the contract, that the policy was in danger of lapsing. Waskul v. Metropolitan Life Insurance Company, (U.S. Dist. Ct., E.D. Mich., No. 17-13932, July 31, 2018).

Long term care insurance is a valuable tool in planning for long term care costs.  Policy lapse is a serious problem, though, given that an insured may experience periods of poor health or disability during which s/he may be unable to pay premiums.   If premiums are not paid timely, and the policy lapses, the financial investment in the policy is lost, and more importantly, the protection afforded by the insurance benefit is surrendered.  

Tools to prevent lapse include automatic payment, prepayment, and the appointment of a loss designee.  Automatic payment and prepayment work well to prevent policy lapse so long as funds are available and sufficient opportunity is afforded the family to recognize and fulfill the need to pay the premium.  This is uncertain, at best, especially over protracted periods of illness or disability.  A "loss designee" is an appointed person other than the insured who is notified of policy lapse, thereby helping to ensure that the premium is paid. 

Carl Waskul purchased a long-term care insurance policy from Metropolitan Life Insurance Company in 1996. The policy was guaranteed renewable, which meant that as long as Mr. Waskul paid the premiums, the company could not cancel the policy. In 2003, Mr. Waskul designated his son as "lapse designee" to receive notice if Mr. Waskul's policy was about to lapse for non-payment. In 2015, Mr. Waskul was diagnosed as cognitively impaired and failed to pay his premium in February 2016. The long-term care insurance company did not notify Mr. Waskul's son that the premium had not been paid.

When Mr. Waskul's children contacted the insurance company in 2017 for a coverage determination, they were told his policy had been cancelled. Mr. Waskul sued the insurance company for breach of contract and fraudulent misrepresentation. The insurance company filed a motion to dismiss.

The U.S. District Court for the Eastern District of Michigan, Southern Division, denied the motion to dismiss the breach of contract claim, but granted the motion to dismiss the fraudulent misrepresentation claim. The court ruled that Mr. Waskul successfully stated a claim that the insurance company did not meet its obligation under the contract "when it neglected to inform his son that [Mr. Waskul] had failed to pay his policy premium in February 2016." However, the court ruled that Mr. Waskul does not state a claim for fraudulent misrepresentation because the company did designate his son as lapse designee. According to the court, failure to follow through "does not show that [the insurance company] knowingly made the false representation that [Mr. Waskul] could appoint a lapse designee.

Although it is little consolation that an insured has a right to sue for the lapse if a policy lapses, the reality is that legal action may return to an insured and his or her family some of the investment in the policy.  Regardless, the case demonstrates why an insured should designate a lapse designee, whether or not such a designation is permitted by the terms of the policy.  Without a "lapse designee," there is no protection for the insured or the insured's family when illness or disability prevents payment of the premium. 

New Law Helps Seniors Prevent Identity Theft

The National Center for Law & Elder Rights (NCLER) has released a fact sheet explaining a new law that allows consumers to place freezes on their credit information for free. The fact sheet, entitled "New Law Provides Free Security Freezes and Increased Fraud Alert Protection," explains that "[o]n May 24, 2018, the President signed Public Law 115-174 into law. Section 301 of Public Law 115-174 amends the Fair Credit Reporting Act, to establish a new federal right for consumers to implement a security freeze of their credit file." (citations omitted).  

The NCLER fact sheet explains:

A security freeze is the single most effective tool to minimize the risk of identity theft. Identity thieves often target unsuspecting older adults, luring them into giving out personal information. The scammers then use this information to steal the older adults’ identity and ruin a lifetime of positive credit.  As a general rule, security freezes allow a consumer to prohibit the release of their credit report. When a thief applies for credit in the victim’s name, often the intended creditor will attempt to obtain the victim’s credit report or score. The idea behind a security freeze is that, when the credit reporting agency returns no information or a notice that the consumer has frozen the file, the creditor will deny the thief’s application, thereby thwarting the thief and protecting the consumer’s credit reputation as well as the business interests of the creditor.

The new law permits the creation, temporary lifting (or “thaw)” and permanent removal of security freezes from the nationwide consumer reporting agencies. The security freezes are limited to parties seeking the consumer’s information for credit purposes, and do not apply to parties who seek the report for employment, insurance, or tenant-screening purposes. Freezes also do not apply to existing creditors or their agents conducting an account review, collecting on a financial obligation owed them, or seeking to extend a “firm offer of credit” (i.e.,pre-screening). 

The new law also extends the length of  fraud alerts from three (3) months to a full year.  A fraud alert notifies users that the consumer has been or may become a victim of fraud or identity theft. Extending the fraud alert better protects the consumer,

In addition, the new law federalizes or preempts state credit freeze laws.  "The legislation’s preemption extends to any state requirement or prohibition with respect to subject matter regulated by the statute’s provisions relating to security freezes. For example, some state statutes are stronger than the new federal standards by allowing consumers to freeze access to credit reports for employment or insurance purposes." There is also a provision covering when a fiduciary needs to secure a freeze for an individual who is incapacitated.

The new legislation should help seniors avoid identity theft. 

Study Shows Some Hospitals Steering Patients Away from Nursing Homes

Put YOU back in your plan!

Good news is on the horizon for seniors and their families hoping to Age in Place, i.e., avoid unnecessary institutional care.  There is evidence the underlying health care system is reforming to embrace Aging in Place preference for non-institutional care.  According to an article  published in McKnights Long Term Care News, hospitals participating in bundled payment efforts are actively reducing the use of skilled nursing care! The evidence comes in the form of a new study out of the University of Pennsylvania, published Monday in Health Affairs.

Skilled care is a big driver of cost growth and variation in Medicare, the authors note. In 2015 alone, about twenty percent (20%) of Medicare fee-for-service hospital admissions went to a Skilled Nursing Facility (SNF), despite scant evidence that this is the optimal post-acute setting, or that a nursing home helps improve quality, Penn researchers wrote.  Of course, that is no surprise to those of us in the "Aging in Place: community.  Long have advocates decried the obvious negative physical, mental, and  and emotional health outcomes so often incident to and consequence of institutional care, and particularly unnecessary or avoidable institutionalization.   

Motivated primarily by concerns for cost growth and variation, however, the Centers for Medicare & Medicaid Services (CMS) has finally arrived at the same destination.  CMS has undertaken both the Bundled Payments for Care Improvement initiative and the Comprehensive Care for Joint Replacement model in an effort to eradicate some of that cost variation. Wanting to better understand how hospitals are navigating these waters, researchers interviewed leaders at twenty-two (22) institutions taking part in those two CMS bundled pay efforts.

"It's clear from the results that hospitals are looking to reduce SNF use," said Jane Zhu, lead author and a national clinician scholar and fellow in the Division of General Internal Medicine at Penn's Perelman School of Medicine.  She explained:   

“For the past couple of decades, we've had a persistent increase in SNF utilization across the country, but it's still very unclear what the benefit ultimately is for patients, and what the optimal post-acute setting is,” she told McKnight's. “As bundled payment incentives force hospitals to think along the lines of total cost of care, they're starting to see that, for certain patients, skilled nursing facilities offer no greater benefit and are more expensive than other venues.”

Often, hospitals are reducing SNF referrals by using risk-stratification tools, better educating patients, providing care support at home, and better linking up with home health agencies to smooth out any discharge hiccups.  Of course, patient choice and directive, not mentioned by the researchers or McKnights may also be contributing to reduced SNF utilization.

Other hospitals, meanwhile, are strengthening bonds with nursing homes, researchers found. Fifteen institutions formed networks of preferred SNFs, aiming to exert influence over cost and quality. Typical tactics found included linking electronic medical records, embedding a hospital provider in the nursing home and hiring dedicated care coordination staffers.  Most often, hospitals are partnering with SNFs with which they are familiar and have trust, rather than reaching out to new partners, authors added.

Zhu's three key takeaways for skilled nursing operators:

Payment really matters. Hospitals have been “really conscientiously and in a very collective manner reorganizing the way that they are thinking about post-acute care, and specifically trying to save costs, along those lines.” The payment structure is having a distinct effect on hospitals' behavior.

The extent to which these practices have been disseminated is unclear. Some of the things hospitals are doing have “enormous implications” for skilled nursing facilities. Hospitals are really trying to move away from SNF use, particularly for joint replacement patients. They are trying to then integrate and coordinate care with skilled nursing facilities through a variety of different structures.

There's uncertainty over what the ultimate implications are for SNFs. There is a question of what sorts of pressures SNFs will face, given these hospital practices.

“SNFs are not only under heavy pressure to work more closely with hospitals and to compete to be the desired referral partner,” Zhu told McKnights, “but they're also facing downward referral pressures as hospitals try to send their patients, more and more frequently, home.” 

Future research may expand on how nursing homes are responding to this trend. 

The Future of Home Care

Houser, Ari, "The Future of Home Care," CSA Journal (Vol.1, 2018) pp. 33-37.

Researchers find Alzheimer's Threat Persistent Regardless of Age; Average Survival Confirmed as 6 Years

According to an article published in McKnight's Long Term Care News, first-ever studies are bringing new revelations about Alzheimer's Disease.  The studies were released as the Alzheimer's Association hosts its 2018 International Conference in Chicago. Among the findings: Dementia survival time is short, regardless of the age at onset.

Aiming to better understand survival times of those diagnosed at a relatively young age, Amsterdam researchers poured over data for some 4,500 early-onset dementia patients in one memory clinic. They found that median survival time, across all age groups, was six years, hardly different from those older than 65.

These findings suggest that, despite all efforts and despite being younger and perhaps physically "‘healthier" than older people, survival time in people with young-onset dementia is not greater and  has not improved since 2000

Another study, of dementia data from 11 countries tied to more than 4,100 ages 95-110 found that prevalence of the disease increased with age in all societies.  On the other hand, though, the risk for dementia and cognitive impairment varied “significantly” from country to country, “suggesting cultural and lifestyle factors play a role in remaining physically and cognitively health with age.  Those with higher levels of education, for one, expressed a lower prevalence of dementia than those with fewer years of education.

In yet another study, researchers from the University of California-San Francisco announced this week that the dementia rate of lesbian, gay and bisexual older adults was about 7.4%, compared to about 10% for the general population, according to study results. It was the first dementia prevalence data from a large population of LGB older adults and examined data from some 3,700 such individuals over age 60. 

The association also announced on Sunday that it is establishing the first-ever Dementia Care Provider Roundtable, as a means to gather thought leaders from across the U.S. to find ways to better treat the disease.  The group, which consists of key players in the skilled nursing and assisted living fields, Genesis HealthCare and HCR Manor Care among them, will meet for the first time Thursday, the last day of the five-day conference.

Three Surprises to Watch Out for When Paying for Long Term Care

Chris Orestis, executive vice president of GWG Life, has penned an excellent article for The Independent: 

"More than 70 percent of Americans over the age of 65 will need long-term health care services, according to the U.S. Department of Health and Human Services. Yet, according to the Employee Benefit Research Institute, only 13 percent of those who received professional home health care had long-term insurance policies, which can protect seniors from high out-of-pocket costs.

There is a wide gap of people without long-term care insurance, or LTCI, and some of the alternatives carry little-known laws and legal liabilities that can pose  problem to the care recipient and their families.

The growing long-term care funding crisis has brought lawsuits and mandated claw-back actions against families in attempts to recover monies spent on long-term care. There is a growing need for consumers to consider all their available financial options to fund long-term care, and that can include selling a life insurance policy.

Often the weight for long-term care falls on the family, and they need to avoid a financial surprise that can come late in life for their loved ones.

There are three surprises to watch out for when paying for long-term care and key things people should know about alternative ways of paying for it as well as the possible problems those can present down the road.

States can sue for Medicaid recovery of LTC

Many families assume that once a senior is approved for Medicaid coverage of long-term care, the only thing left to worry about is maintaining financial and functional eligibility. You’ve proven that a loved one cannot afford the level of care he or she requires, but that doesn’t mean there isn’t anything left to worry about in terms of covering and repaying costs. The Omnibus Budget Reconciliation Act of 1993 requires states to implement a Medicaid estate-recovery program, which allows states to sue families via probate court to recover Medicaid dollars spent on a family member’s long-term care. A report by the Office of the Inspector General showed that Medicaid, the primary source of long-term coverage, recovers hundreds of millions of dollars from families every year. But as budget pressures on states increase, estate-recovery actions are likely to become even more aggressive.

Watch out for withheld information on life insurance

Selling or borrowing against a life insurance policy in the secondary market, a process called a life settlement, is a way to help people find alternative funding sources for long-term care. A number of states have passed legislation mandating consumer disclosure about the secondary market before their policies ill be allowed to lapse.

Be aware of filial responsibility laws

These impose a duty upon adult children for the support of their impoverished parents and can be extended to other relatives. These laws can include criminal penalties for adult children or close relatives who fail to provide for family members when challenged to do so. Attorneys for nursing homes are testing the laws by filing lawsuits on behalf of indigent parents to recover funds. Currently, 28 states [including Ohio]  and Puerto Rico have filial responsibility laws in place."

Proper estate and financial planning, and Aging in Place Planning in particular, demands consideration of  long term care financing opportunities, and avoidance of adverse consequences like those discussed in the article.   

Trump Administration deploys Medicaid Scorecard

In June, the Trump administration embarked on a basic change to Medicaid that for the first time evaluates states based on the health of millions of Americans and the services they use through the vast public insurance program for the poor.  Centers for Medicare and Medicaid Services CMS), deployed a “scorecard” that compiles and publicizes data from states for both Medicaid and the Children’s Health Insurance Program (CHIP), a companion for youngsters in working-class families.

This first scorecard includes state-by-state information showing that, on average, just over half the women on Medicaid are getting care while they are pregnant and after giving birth. Only three in five babies get checkups during their first 15 months, and less than half of children and teenagers have preventive dental visits.These and other measures show wide variations among states, though the initial version does not explicitly rank them. The scorecard also makes public for the first time measures of governments’ performance, such as how long both state and federal health officials take when states request “waivers” to deviate from Medicaid’s ordinary rules.

The Trump administration did not initially attach any consequences to how states make out, and indeed has declined to "rank" states.  That could change over the next few years as CMS refines and adds to the scorecard and members of Congress assess what it shows.  

The Trump Administration, through Seema Verma, head of CMS, explained that the scorecard is intended to initiate a conversation about health outcomes.  Medicaid pays for roughly half the nation’s births, but there is no data or discussion how or why states vary in birth outcomes.

The scorecard is part of a fundamental recalibration of the power relationship in Medicaid between the federal government and states. Since the program was created in 1965 as part of Lyndon Johnson’s War on Poverty, both have shared responsibility for paying for and defining the eligibility and benefits.  Medicaid now covers more than 67 million individuals, while CHIP covers nearly 6.5 million.

In the Trump era, federal health officials have been eager to give states more flexibility over Medicaid’s rules and benefits. Most significantly, the administration told states this year that it will allow them to require people to work or participate in other forms of “community engagement” to qualify for the program.

Such flexibility must be accompanied by heightened federal efforts to keep tabs on how well each state’s Medicaid program is functioning. Verma has said that “With all the flexibility must come accountability. We must be honest with ourselves and honest with our stakeholders . . . about how well we are doing.”

The scorecard’s initial information is based on states that voluntarily report a series of measures about the health of their Medicaid and CHIP enrollees. It shows, for instance, that the percentage of adults on Medicaid with high blood pressure under control as of 2016 varied from 26 percent in Louisiana to 72 percent in Rhode Island. The percentage of children ages 3 to 6 on Medicaid and CHIP who were getting adequate doctors’ care varied from 48 percent in Alaska and Idaho to 86 percent in Massachusetts.

Verma did not specify what additional information will be in later scorecards, but she said federal officials might be interested in how many people on Medicaid are working or volunteering, regardless of whether a state has imposed work requirements in its program.

Aging in Place Frustrated By Morass of Regulations- Federal Court Orders State to Give Senior Opportunity to Return Home

It is rare that a single case admits the existence of the morass of laws and regulations frustrating "Aging in Place" as a discreet planning objective.  It is rarer still that a judge carefully outlines just how these laws and regulations frustrate a patient's simple desire to "return home."  We find both in the opinion of the Hon. Jane Maghus-Stinson, Chief Judge United States District Court Southern District of Indiana, in the case Vaughn v. Wernert (S.D. Indiana, June 1, 2018).

Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility following a hospitalization for a temporary illness. The temporary illness did not alter dramatically her functional or cognitive capability. She wanted to go home. The state refused to let her "return home," arguing that it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheotomy in 2012.  The Court introduced the case as follows:

This case is before the Court because Karen Vaughn, a woman living with quadriplegia, has been institutionalized in hospitals and nursing homes for nearly two years, and she wants to go home. She desires and is eligible to receive home-based care, and she seeks to require Defendants, various entities of the Indiana Family and Social Services Administration, to provide that care. She raises claims under the Americans with Disabilities Act, the Rehabilitation Act, and the Medicaid Act, arguing that Defendants have failed to provide her with the medical assistance for which she qualifies, thereby institutionalizing her against her will. Ms. Vaughn seeks injunctive relief, requiring Defendants to take whatever measures are necessary and required by law to provide her with community-based care in the setting of her home (emphasis added).

The  case permitted  Judge Maghus-Stinson to revisit the Supreme Court's landmark 1999 decision in Olmstead v. L.C., 527 U.S. 581 (1999), in which the the U.S. Supreme Court ruled that states can violate Title II of the Americans With Disabilities Act of 1990 (ADA) if they provide only institutional care for the disabled when the disabled could be appropriately served in a home or community-based setting. While the Olmstead decision involved two women with developmental disabilities and mental illness who were residents of a psychiatric hospital, it has been interpreted to extend beyond those specific circumstances. The decision is seen to apply to people with physical as well as mental disabilities, to those in nursing homes, and to those living in the community and at risk of institutionalization. As a result, Olmstead has generated considerable discussion regarding the provision of long-term care services, not only for people with disabilities who currently need services, but also for the growing numbers of aging baby boomers who might need care in the coming decades. The Medicaid program is also seen to be governed by Olmstead, which program permits states to make many of their own decisions, within broad federal guidelines, about whom and what long-term care services to cover, and in what settings.

In Vaughn, ruling on cross motions for summary judgment, the court rejected the state's arguments that home or community based care was unavailable to Ms. Vaughn.  The court ruled that these were only unavailable to Ms. Vaughn because of the complexity in reimbursement rates, not because of the availability of appropriate care providers.  Judge Jane Magnus-Stinson observed,  in ruling in favor of Ms. Vaughn, that:

"...the undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home... That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate."

The court traced, and criticized, the almost indecipherably complex nature of Medicaid waiver programs that fund portions of home care:

Defendants' [the State] own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.

The court explained:

"[The state's] efforts to locate a home healthcare provider were expressly limited by two factors: the reimbursement rate offered by Defendants to home healthcare providers, and the "Medicaid Policy Manual" requirements that certain tasks be performed by skilled medical professionals. But, as Defendants discovered in attempting to locate care providers for Ms. Vaughn, no skilled medical provider will provide the care at the reimbursement rates authorized by the State. Significantly, however, both Ms. Vaughn and her health care providers disagree with the Manual's requirement that a skilled level of care is necessary for some of the tasks associated with Ms. Vaughn's care. Ms. Vaughn has requested relief from the Manual's skilled care requirements. Defendants have offered no source of authority aside from the Medicaid Policy Manual itself as to why it cannot accommodate Ms. Vaughn's request for some skill-level service modifications (emphasis added).

Discussing the State's designations of services as either skilled, or non-skilled, the Court's frustration is obvious:

"...some of these services can be performed by either skilled or non-skilled

caregivers, as deemed appropriate in an individual's plan of care. Some of these overlapping services include active and passive exercise (which is, interestingly, only listed as skilled care on the corresponding respiratory disorders chart), stimulation, and vital signs. In yet another chart, regarding "Gastrointestinal Disorders," vital signs are listed as only skilled care services, and exercise is listed as only a non-skilled care service. In the "Central Nervous System Disorders" chart, "positioning" is listed as only a non-skilled care service,  but on the "Musculoskeletal Disorders" chart, "position changes" are listed as only a skilled care service. [citations and footnotes ommitted]. 

The Court simply cannot make heads or tails of these designations, and Defendants have offered no explanation whatsoever as to the basis for their categorizations in the first place, or the inconsistencies among them in the second. Defendants have also offered no explanation as to how those distinctions might be "necessary for the provision of the service." As Steimel explained, Defendants "cannot avoid the integration mandate by binding [their] hands in [their] own red tape." Steimel, 823 F.3d at 916.

Judge Maghus-Stinson recognized that the court could not simply order Ms. Vaughn's "return home" as an appropriate remedy under the law.  Instead she set a "remedy hearing" to explore all proposals, while  urging the parties to meet prior to that hearing in hopes of finding a mutually agreeable plan.  One hopes that the State will remove the impediments in the path to Ms. Vaughn's return home. 

Astronaut Buzz Aldrin Subject of Guardianship Dispute

Buzz Aldrin: en.wikipedia.com

Astronaut Buzz Aldrin is fighting an attempt by two of his three children to place him under involuntary court-appointed guardianship, according to the Washington Post. The eighty-eight year old, the second person ever to walk on the moon, denies that he is incompetent, and is suing his children, and a former manager, for elder exploitation, financial abuse, and defamation.

Aldrin's children claim that they only are trying to protect the legendary astronaut, who they claim is paranoid and in cognitive decline.  An ABC News report suggests that the family dispute actually began in 2016 after Aldrin collapsed while on an expedition to the South Pole, and had to be evacuated.  The children allegedly sought to limit his activities after the incident, including curtailing what they saw as a lavish lifestyle.

According to the Wall Street Journal,  Aldrin voluntarily submitted to a mental evaluation in April, and passed with flying colors.  An independent doctor determined that Aldrin remains "cognitively intact and retains all forms of decisional capacity." 

Of course, the children blame the lawsuit and allegations of financial exploitation on Aldrin's lack of capacity.  “Let it be clear that every one of these allegations are products of the increased confusion and memory loss that Dad has demonstrated in recent years,” Andy and Jan Aldrin told the Washington Post.  They claim that Aldrin started associating with a third parties who were “trying to drive a wedge between Dad and the family,” Andy Aldrin said. The siblings said they would not allow “opportunistic agents to grab the spotlight, break our family apart.”

Buzz Aldrin has walked on the moon, received both the Distinguished Flying Cross in the Korean War and the Presidential Medal of Freedom, and visited the White House.  He frequently discusses space exploration, and envisions humans living on Mars.  

The Wall Street Journal observes that Aldrin's "legacy in space is secure. On earth it’s another matter." Perhaps in space, there will exist a better system for dealing with allegations of cognitive decline, and a system preventing third party control of a person's financial and non-financial legacy.