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. 

Nursing Home Fails in Effort to Remove Resident's Guardian Over Failed Medicaid Application

Nursing homes often develop a tense relationship with the fiduciaries that represent their residents' interests.   Trustees, guardians, and agents (attorneys-in-fact) should be aware that a nursing home, or any other institution, might lose confidence of the fiduciary and seek his or her replacement.  A recent New Jersey case concerned the legal dispute that arose when the nursing home sought to replace a resident's court-appointed guardian.  

A public guardian was appointed for Y.M., a nursing home resident. The guardian applied for Medicaid on Y.M.'s behalf. The state denied the application, and the guardian appealed, but then withdrew the appeal and submitted a new application.

The nursing home filed a motion to remove the public guardian and replace the guardian with one of two other individuals. The nursing home argued that the public guardian had made errors in the Medicaid application and failed to set up a qualified income trust (QIT) for Y.M., which resulted in the denial of the Medicaid application. Y.M. argued that the alternate guardians suggested by the nursing home had a conflict of interest. The trial court denied the nursing home's motion, and the nursing home appealed.

A New Jersey appeals court ruled against the nursing home's effort to remove the resident's guardian.  The nursing home filed a motion to remove the resident's court-appointed public guardian because the resident's initial Medicaid application, prosecuted by the guardian, was denied.  The appellate court ruled that the denial of the Medicaid application was not proof that the guardian was not acting in the resident's best interest. In the Matter of Y.M. (N.J. Super. Ct., App. Div., No. A-4532-16T4, June 8, 2018). According to the court, "aside from the payment of Y.M.'s debt to the facility, [the nursing home] provided no other information to convince the judge Y.M. was dissatisfied with [the public guardian]."

Dementia Depletes Life Savings

The financial and non-financial impact of dementia is undeniable, but is most tangibly recognizable in its tragic elimination of life savings. It is vital that everyone involved in planning for seniors recognize and appreciate the limits of Medicare, which only covers health care based on a diagnosis of illness or injury. The San Jose paper, the Mercury News ran an important story describing this phenomenon, aptly titled,"How dementia can drain a family’s life savings."  The subheading to the article offers this stark warning: "Medicare offers no help for the high costs of dementia caregiving."

The article explains:

”Medicare is a lifeline for seniors and the disabled, paying for “medically necessary” costs such as hospitalization, surgery, chemotherapy, transplants, medications, pacemakers and other interventions... A dementia diagnosis demands none of that. What it does require, however, is around-the-clock “custodial care,” such as help with eating and dressing, and constant supervision. That’s not covered by Medicare. And it’s extraordinarily expensive, according to a report released last month by the Alzheimer’s Association...Families’ out-of-pocket costs for a patient with dementia are 80 percent higher than the cost for someone with heart disease or cancer, according to a 2015 study in the Annals of Internal Medicine.

According to a report from the Alzheimer's Association, families can expect to spend sixty billion dollars ($60,000,000,000) caring for those with dementia!  The study apparently does NOT include those who suffer from early onset Alzheimer's.  The number of Americans living with Alzheimer's is growing — and growing fast. An estimated 5.7 million Americans of all ages have Alzheimer's.

An estimated 5.7 million Americans of all ages are living with Alzheimer's dementia in 2018. This number includes an estimated 5.5 million people age 65 and older and approximately 200,000 individuals under age 65 who have younger-onset Alzheimer's.

• One in 10 people age 65 and older (10 percent) has Alzheimer's dementia.
• Almost two-thirds of Americans with Alzheimer's are women.
• Older African-Americans are about twice as likely to have Alzheimer's or other dementias as older whites.
• Hispanics are about one and one-half times as likely to have Alzheimer's or other dementias as older whites.

As the number of older Americans grows rapidly, so too will the numbers of new and existing cases of Alzheimer's. Today, someone in the United States develops Alzheimer's every 65 seconds. By mid-century, someone in the United States will develop the disease every 33 seconds.

Mortality from Alzheimer's is shockingly high, but mortality so often comes with a steep cost for lifetime suffering.  Alzheimer's disease is the only top 10 cause of death in the United States that cannot be prevented, cured or even slowed.

Alzheimer's disease is the sixth-leading cause of death in the United States, and the fifth-leading cause of death among those age 65 and older. It also is a leading cause of disability and poor health.
Although deaths from other major causes have decreased significantly, official records indicate that deaths from Alzheimer's disease have increased significantly. Between 2000 and 2015, deaths from Alzheimer's disease as recorded on death certificates increased 123 percent, while deaths from the number one cause of death (heart disease) decreased 11 percent.  Among people age 70, 61 percent of those with Alzheimer's are expected to die before the age of 80 compared with 30 percent of people without Alzheimer's — a rate twice as high.

There are tragically few options for those suffering from conditions with this diagnosis.  Long Term Care Insurance (LTCI) can help, but paying privately is the option selected by the vast majority of those who will spend down assets in order to qualify for Medicaid.  Medicare does not help unless there is a hospitalization, and the benefit is limited. The article notes that families with dementia can forget home care or memory care because Medicare does not cover these treatments or care. 

The challenge of financial planning with dementia in mind is not new. The challenge is certainly becoming a bigger issue with the significant number of Boomers, and the dwindling options available to consumers. The wise seek early legal and financial counsel. The unwise risk losing everything.

Trump Administration Embraces Aging In Place- 2019 Advantage Plans Permitted to Incorporate Long Term Care

Starting in 2019, Medicare Advantage plans can cover adult day care services, and in-home help with activities such as dressing, bathing and managing medications, a top Trump administration official said Wednesday, according to an article entitled, "Official Gives Hints About Medicare Advantage LTC Benefits," published in ThinkAdvisor.  The move might make Medicare Advantage Plans (hereafter "Plans") more attractive alternatives to Medicare. 

Seema Verma, the administrator of the Centers for Medicare and Medicaid Services (CMS), spoke about the Medicare Advantage program’s new benefits flexibility at a Medicare conference at CMS headquarters, in Baltimore.  CMS announced the changes in April, in a memo sent to potential 2019 Plan issuers. According to the article, while it is not yet clear whether any issuers will add significant supplemental benefits for 2019, "executives from Humana Inc. hinted during their first-quarter earnings call that they might be able to work with partners"  to provide such benefits.

According to the article:

Verma told insurance company executives at the conference that CMS hopes its new “reinterpretation” of the Medicare Advantage program benefits rules will help unleash private-sector innovation and creativity.  She said she has seen the effects of that creativity in her own life.  “Both my parents are enrolled in a Medicare Advantage plan, and they can’t stop talking about them,” Verma said, according to a written version of her remarks distributed by CMS.

A copy of Verma's speech is available here.  

The Old Rules

The Medicare Advantage program lets private insurers use a combination of government money and patient premiums to provide an alternative to traditional Medicare coverage.  In the past, managers of Medicare Advantage have tried to simplify the Plan shopping process, and discouraged Plans from offering benefits that might drive up health care costs, by putting tight restrictions on the kinds of benefits a Plan issuer can offer.  Those restrictions kept Plan issuers from adding benefits such as adult day care benefits, except when the Plans were participating in CMS pilot programs or other special programs.

The New Rules

CMS is employing a new strategy permitting Plans that offer benefits that  compensate for physical impairments, reduce the impact of injuries, or reduce avoidable use of emergency rooms.  Although Verma did not use the terms “long-term care,” or “short-term care,” in her remarks or written speech, the benefits she described are similar to the kinds of benefits many private long-term care insurance policies offer through home health care and community care provisions.  The new approach and resulting rules will also allow Plans to add supplemental benefits tailored to meet the needs of people with specific conditions, including chronic conditions.

The new interpretations are separate from and further expand the chronic care benefits already offered in the Bipartisan Budget Act of 2018 through Medicare. The BBA-2018 provisions expand the range of Medicare supplemental benefits chronically ill enrollees can get starting in 2020.

Requirements for Supplemental Benefits

Of course, the devil is often in the details, and proposed rules were not published. Regardless, the guidance suggests that the additional Plan benefits must ensure the benefits are ”primarily health related,” and "not primarily for a patient’s comfort."  The services covered "must be recommended by a physician or other licensed medical professional as part of a care plan," and the new benefits "must not include items or services used to induce enrollment."  A Plan can choose to help individuals both with basic “activities of daily living,” such as walking, and with the “instrumental activities of daily living,” such as taking medications correctly.

The new interpretation will let a Plan tailor benefits, such as deductibles or wellness options, to fit people with certain medical conditions, such as diabetes.  That interpretation will not, however, allow a Plan to tailor benefits based on an enrollee’s income or poverty level, or any other characteristic other than health status.  Plans must use “objective and measurable” criteria to identify eligible enrollees.