Consumers Benefit from Feds Effort To Reduce Antipsychotic Drug Use in Nursing Homes

Nursing homes around the country are under pressure from the Federal government to reduce their use of antipsychotic medications in treating patients with dementia, including patients suffering from Alzheimer's Disease. This powerful class of prescription drug is meant for mental illnesses such as schizophrenia.  But they are being used on people with dementia and Alzheimer's Disease at startling rates.  

In the United States, 25.2% of all nursing facility residents receive antipsychotic medications, according to data from the Online Survey Certification and Reporting Database (OSCAR) (member login required) from the Centers for Medicare and Medicaid Services (CMS).  .  More than half of nursing home residents may suffer dementia, and while many of these residents experience BPSD (behavioral and psychological symptoms associated with dementia), the preferred therapies for management of these symptoms are non-pharmacologic, including environmental modifications. If an underlying cause or reason for the behaviors can be identified, a non-pharmacologic approach that addresses this underlying cause can be effective and safe.

Some believe that antipsychotic medications are being used unethically to control behavior, in effect, handcuffing patients to wheelchairs so that they won't be a nuisance.  In addition to the ethical questions of simply sedating patients, the drugs have sometimes serious side effects, and can pose a serious health risk.  Some believe that use of such medications can actually increase a senior's risk of injury or death.  

According to The National Consumer Voice for Quality Long Term Care, the misuse of antipsychotic medications in nursing homes can harm long-term care residents in many ways. When used inappropriately among nursing home residents, antipsychotic medications can:

• Place Nursing Home Residents at Increased Risk of Injury, Harm and Death: Antipsychotic drugs, when prescribed for elderly persons with dementia, can have serious medical complications, including loss of independence, over-sedation, confusion, increased respiratory infections, falls, and strokes. In fact, one study found residents taking antipsychotics had more than triple the likelihood of having a stroke compared to residents not taking these medications. Even worse, antipsychotics can be deadly; in 2005, the Food and Drug Administration (FDA) issued “Black Box” warnings for antipsychotics stating that  individuals diagnosed with dementia are at an increased risk of death from their use and that physicians prescribing antipsychotic medications to elderly patients with dementia should discuss the risk of increased mortality with their patients, patients’ families and caregivers. The FDA has also stated that these medications are not approved for the treatment of dementia-related psychosis, nor is there any medication approved for such a condition. 

Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage

The Illinois Supreme Court overturned the 26-year-old opinion In re Marriage of Drews, 503 N.E.2d 339 (1986), ruling that a guardian has the legal authority to petition for dissolution of a ward's marriage, and may take appropriate legal action to accomplish that end. Karbin v. Karbin, 2012 IL 12815 (Ill. 2012). 

In 1986, the Supreme Court had held that a guardian did not have standing to initiate a dissolution of marriage action on behalf of a ward. The court found that the Probate Act, which allows a guardian of the estate to appear and represent a ward in legal proceedings, was limited to matters directly involving the ward’s estate and that there was no comparable language which governs rights and responsibilities over the ward’s person. In making this decision, the court said that it was following a strong majority rule across the country. In re Marriage of Drews, 503 N.E.2d 339, 340 (1986).

The decision was short and concise. Justice Seymour Simon dissented, arguing that the court’s holding was too restrictive. “If the initiation of a legal proceeding though personal can be shown to be beneficial to the maintenance and welfare of the ward, the court ought to allow it.” In re Marriage of Drews, 503 N.E.2d 339 342 (1986).

Karbin v. Karbin involved a contentious divorce case that, while initiated by the competent husband, was being pursued by the incompetent wife’s guardian after the husband voluntarily dismissed his petition. The husband moved to dismiss the counterpetition filed by the guardian, citing Drews. The trial court dismissed the case and the Appellate Court affirmed. As its first order of business, the court justified its decision to overturn Drews, finding that the court had shifted away from Drews. Karbin v. Karbin, 2012 IL 12815 at 6 (Ill. 2012).

In fact, the limitation on the guardian’s authority ordered in Drews was abandoned only three years later in Estate of Longeway, when the Supreme Court held that a guardian has implied authority to act in the ward’s best interests regarding the use of life-sustaining measures. Estate of Longeway, 549 N.E.2d 292 (1989). Later that year, the Supreme Court reaffirmed that expansion of authority by holding that a guardian may decide to remove life support. Estate of Greenspan, 558 N.E.2d 1194 (1980).

After justifying its decision to overturn Drews, the Karbin Court pointed out that the divorce in Drews had been filed prior to the adoption of no-fault grounds in Illinois. At that time, divorce involved one guilty party and one injured party and it was the sole choice of the injured party to severe the marriage. This was considered a uniquely personal decision to which no one else was privy. Once the concept of injury was removed from divorce, the decision to end a marriage would be no more personal than the decision to end life support, have an abortion or undergo involuntary sterilization. In fact, the court noted, divorce was not as final or permanent as those decisions were. Karbin v. Karbin, 2012 IL 12815 at 11 (Ill. 2012).

There was simply no reason why a guardian should not be allowed to make the personal decision to file for divorce using the substituted judgment standard permitted by the Probate Act. “As is apparent, the traditional rule espoused in Drews is no longer consistent with current Illinois policy on divorce as reflected in the Illinois Marriage and Dissolution of Marriage Act.” Karbin v. Karbin, 2012 IL 12815 at 11 (Ill. 2012).

Finally, this court found that continued application of the holding in Drews could put an incompetent spouse at the mercy of an ill-intentioned competent spouse. “Because under the Probate Act the guardian must always act in the best interests of the ward, when a guardian decides that those best interests require that the marriage be dissolved, the guardian must have the power to take appropriate legal action to accomplish that end.” Karbin v. Karbin, 2012 IL 12815 at 12 (Ill. 2012).

The Court summed up its discussion succinctly: “[t]his ensures that the most vulnerable members of our society are afforded fundamental fairness, equal protection of the laws and equal access to the courts. Therefore, In re Marriage of Drews is hereby overruled.” Karbin v. Karbin, 2012 IL 12815 at 14 (Ill. 2012).

Upon remand, the court directed the Circuit Court to hold a hearing in order to determine if divorce is in the ward’s best interests, clarifying that the guardian always acts as the hand of the court and subject to the court’s direction. In order to prevent a guardian from pursing a divorce for his or her own purposes, the guardian must satisfy a clear and convincing burden of proof that the divorce is in the ward’s best interests. This higher burden is in accordance with the standard applied to other highly personal issues. Karbin v. Karbin, 2012 IL 12815 at 15 (Ill. 2012).

While most probate and domestic relations practitioners agree that the decision to overturn Drews was long overdue, on the grounds that a guardian who has standing to petition the court to withdraw life support from a ward, should likewise have authority to dissolve a marriage, both decisions being personal to the ward, others are more apprehensive because a guardian can remove an advocate spouse when the spouse is properly recalcitrant or vocally objects to decisions of an abusive guardian.  

Those supporting a guardian's authority rely upon the Probate Court to decide whether pursuing a divorce is clearly and convincingly in the ward’s best interests.

Beware Asset Protection Plan Scams

The following excerpt is reprinted from an excellent article written by Forbes contributor, Todd Ganos, and posted online here.  I am a firm believer in asset protection strategies as part of a comprehensive estate, financial, and/or business succession plan.  That being said, the number of dubious mass marketed and mass produced  "asset protection plans" is troubling. 

 I advise my clients that anything called an asset protection plan or asset protection trust should be considered critically and carefully.  Many of these mass marketed plans cannot survive scrutiny.  Remember, if it sounds too good to be true, it probably is. Remember also, that keeping your asset protection strategies secondary to other legitimate estate, financial, or business succession objectives is key to their success.  In this regard, see my article, "Asset Protection Planning- "Keep it Secret; Keep it Safe." 

Mr. Ganos writes:

Recently, a friend attended a seminar on asset protection.  Based on information that my friend provided to me, the seminar seemed to be what has become a disturbing trend.

To be certain, asset protection is an important discipline within the field of wealth management.  Asset protection might also be called risk management.  As one might imagine, there are a number of ways to implement asset protection/risk management.  And, it is not uncommon for asset protection/risk management issues to intertwine with other disciplines, such as estate planning and tax planning.

So, how might a seminar on asset protection be a scam?  Perhaps you have heard the saying: if all you have is a hammer, everything looks like a nail.  What typically occurs in one of these seminars is that the presenter whips up fear about gold-diggers filing frivolous lawsuits attempting to get at your hard-earned money.  Typically, the presenter’s solution is not an interdisciplinary approach to an individual’s circumstances.  Instead, the presenter’s solution seems to always lead to a family limited partnership, a Nevada “secret” company, or an asset protection trust in a favorable jurisdiction . . . which is what the presenter specializes in.  And, whatever the solution is, it is cloaked in an aura of “only the elite know about this.”

Son Liable for Mother's Nursing Home Bill Under Filial Responsibility Law

A Pennsylvania appeals court has held a son liable for his mother's $93,000 nursing home bill under the state's filial responsibility law. Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012).

John Pittas' mother entered a nursing home for rehabilitation following a car crash. She later left the nursing home and moved to Greece and a large portion of her bills went unpaid. Mr. Pittas' mother filed an application for Medicaid, which is still pending.

The nursing home sued Mr. Pittas for nearly $93,000 under the state's filial support law, which requires a child to provide support for an indigent parent. The trial court entered a verdict in favor of the nursing home, and Mr. Pittas appealed. Mr. Pittas argued that the trial court improperly put the burden of proving his inability to support his mother on him and that the court should have considered alternate forms of payment, such as Medicaid and his mother's husband and her two other adult children.

The Pennsylvania Superior Court affirmed, holding that Mr. Pittas is liable for his mother's nursing home debt. The court agreed with Mr. Pittas that the nursing home had the burden of proving that Mr. Pittas' ability to support his mother, but it ruled that the nursing home submitted enough evidence to meet that burden. The court also held that the law does not require it to consider other sources of income or to stay its determination pending the resolution of the Medicaid claim.  It notes that if Mr. Pittas had wished to share his support burden with other family members, he could have joined them in the case.

Imagine trying to explain to your brother or sister at Thanksgiving that suing them wasn't personal; "Just sharing the burden."  

Ohio Nursing Homes Receive Favorable Ratings

The  Guide contains useful information about
nursing homes and residential care facilities

Families of nursing-home residents across the state reported overall satisfaction with the care being provided to their loved ones in 2012, according to results of a state study.

In the latest survey, 25 facilities scored higher than 94 percent. The statewide low was 66 percent for an overall rating, and the high was 97.5 percent.

The satisfaction ratings are available on the Ohio Long-term Care Consumer Guide.   The Consumer Guide includes other information about nursing homes and residential care facilities, including inspection results, a list of available services, staffing levels, results of resident surveys and more.

"Selecting a nursing home that can provide the right care in the right ways for ourselves or a loved one is one of the most important choices we may have to make in our adult lives. This survey and Ohio's Long-term Care Consumer Guide are important tools for families who expect, and deserve, excellence," said Bonnie Kantor-Burman, director of the Ohio Department of Aging. "The survey and the guide emphasize our commitment to quality care. Consumers must be fully informed about their options if we are to expect that they will, in turn, demand excellence for themselves or their family members."

The family satisfaction survey was conducted between May and December 2012 by the Scripps Gerontology Center of Miami University in Oxford, Ohio, on behalf of the Ohio Department of Aging and under the direction of the Office of the State Long-term Care Ombudsman. More than 27,000 family members and 948 homes participated. Of the 721 participating homes with statistically significant results, 387 scored above the state average and 229 scored 88 or better, which earns them an additional "quality point" in a reimbursement formula used by the Office of Medical Assistance (Medicaid) to reward quality in nursing homes. Survey costs are supported by a fee charged to nursing homes by the state.

This year, the department revised the survey to better capture the needs and ideas of families. For this reason, Kantor-Burman cautioned against directly comparing the survey results with those from previous years. "This survey reflects our increased focus on person-centered care and caring and our new quality-based reimbursement formula. We expected that these changes may have an impact on the statewide average. We are especially pleased with the larger than usual response rate and are gratified by the number of families who are so involved with their loved ones' care."

"In addition to assisting families in choosing quality, person-centered nursing homes, this survey also is a tool to help long-term care administrators and staff improve the care and services they provide," added Beverley Laubert, the State of Ohio Long-term Care Ombudsman. "Staff, residents, families, advocates and state leaders continue to work together to ensure choice, respect and self-determination for all, regardless of where they call 'home.'"

The survey asked family members their opinions on activities, administration, admission, choices, direct care and nursing, laundry, meals and dining, social services, therapy and general satisfaction. Researchers identified two key questions that sum up the respondent's perception of the home: "Overall, do you like this facility?" and "Would you recommend this facility to a family member or friend?" Seven facilities scored 100 on both questions:

• Edgewood Manor of Greenfield I, Greenfield, Highland County
• Glenmont, Hilliard, Franklin County
• Morrow Manor Nursing Center, Chesterville, Morrow County
• Mount Notre Dame Health Center, Cincinnati, Hamilton County
• Saint Angela Center, Pepper Pike, Cuyahoga County
• Ursuline Center, Toledo, Lucas County
• West View Manor Inc., Wooster, Wayne County

The most recent family satisfaction data complements the 2011 resident satisfaction survey results on the Consumer Guide site. The department will survey resident satisfaction again in 2013.

Top 25 Ohio Nursing Homes for Family Satisfaction

Facility Name	City	County	Overall Score*
Bradley Bay Health Center	Bay Village	Cuyahoga	97.49
Saint Angela Center	Pepper Pike	Cuyahoga	97.23
Glenmont	Hilliard	Franklin	96.93
Willow Brook Christian Home	Columbus	Franklin	95.93
Morrow Manor Nursing Center	Chesterville	Morrow	95.87
Little Sisters of the Poor	Oregon	Lucas	95.63
Kendal at Oberlin	Oberlin	Lorain	95.51
Deupree Cottages	Cincinnati	Hamilton	95.41
Rest Haven Nursing Home	McDermott	Scioto	95.18
House of Loreto	Canton	Stark	94.98
Mount Notre Dame Health Center	Cincinnati	Hamilton	94.93
Morris Nursing Home	Bethel	Clermont	94.88
Sarah Jane Living Center	Delphos	Van Wert	94.82
Alois Alzheimer Center	Cincinnati	Hamilton	94.48
Cherith Care Center at Willow Brook	Delaware	Delaware	94.47
Hampton Woods Nursing Center, Inc.	Poland	Mahoning	94.44
Apostolic Christian Home, Inc.	Rittman	Wayne	94.24
Mother Angeline McCrory Manor	Columbus	Franklin	94.16
Ursuline Center	Toledo	Lucas	94.13
Worthington Christian Village	Columbus	Franklin	93.92
Putnam Acres Care Center	Ottawa	Putnam	93.84
Twin Oaks Care Center	Mansfield	Richland	93.83
Bethany Nursing Home, Inc.	Canton	Stark	93.81
Kimes Nursing & Rehab Center	Athens	Athens	93.80
Mother Margaret Hall Nursing Home	Mount Saint Joseph	Hamilton	93.76