Archive for the ‘Legal News’ Category

Open for Interpretation: POLST Forms Versus DNRs

When it comes to end-of-life decision making, most people are very specific about their personal preferences, according to a recent article at OregonLive.com. But a standard DNR (Do Not Resuscitate) order falls short, leaving caregivers with the burden of interpreting their loved one’s wishes. DNRs are currently the standard used by most hospitals and skilled nursing facilities, but a growing movement is slowly replacing the DNR: POLST forms.

POLST forms go beyond the DNR

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POLST (Physician Orders for Life-Sustaining Treatment) forms go above and beyond, outlining specific measures to be taken under different circumstances. A person can specify, for example, that he wants to be treated with antibiotics for an infection but does not want a feeding tube. POLST forms have actually been around since the 1990s (and were developed in Oregon), but communities across the country have been implementing the program in recent years.

POLST: Overcoming limitations of DNRs and advance directives

Standard DNRs and advance directives can be difficult to locate in an emergency. POLST forms, on the other hand, were originally designed to be brightly-colored and travel with a patient. If a resident in a skilled nursing facility or assisted living facility is transferred to the hospital, for instance, the POLST form accompanied the patient so there’s no ambiguity regarding the individual’s preferences.

Today, however, the state of Oregon relies on an electronic database established in 2009 so practitioners have immediate access to a patient’s POLST form. And patients are free to completely revoke or modify their POLST forms at any time. To date, more than 70,000 Oregon residents have filed a POLST form, a dozen states have implemented POLST orders and 22 additional states have plans to do so.

Code status tells little about individual preferences

Standard DNRs (or advance directives) tend to focus solely on a person’s code status: Do you want to be resuscitated in the event that your heart stops beating, for instance. The answer for many folks is no, but these orders fail to move beyond this to specify individual circumstances and various types of treatment  options that could provide comfort or prolong life.

The problem is that many physicians and emergency personnel have a tendency to over-interpret a no-code status, meaning if they’re treating an individual with a DNR, they also won’t consider other treatment options, such as antibiotics, feeding tubes, comfort care or hospitalization. Under these circumstances, some individuals failed to receive treatment they may have wanted, or ended up receiving life-sustaining measures they would have opted out of if given the choice.

Researchers from Oregon found that about 72 percent of people in the registry (a total of 25,000 individuals) didn’t want CPR, but were in favor of other measures, including hospitalization, temporary feeding tubes and antibiotics to treat infection. In prior studies, it was discovered that patients with a no-code status were less likely to receive antibiotics or to be hospitalized, and in some cases, physicians were less likely to order lab work.

According to Dr. Steven Zweig, professor at the University of Missouri-Columbia School of Medicine, says POLST forms help create meaningful conversations about end-of-life care, noting that standard DNRs over-emphasize CPR without drilling down to other important preferences.

No Crystal Ball? How to estimate your long-term care costs.

There are so many aspects to long term care: medical, social, environmental, psychological and spiritual.  But the one that I’d like to talk about is the financial aspect.  If you don’t qualify for Medicaid, you will be paying for the overwhelming portion of your long term care.  And with the economy in the shape it is, the government will be seeking to spend less and less.

Consider how you Plan for Other Large Purchase.

Purchasing long term care is one of the largest financial transactions you will make, ranking up there with purchasing a home and a college education.  Depending on your longevity and level of care, it can exceed both by a wide margin, easily being the most costly.

When we think we might be ready to buy a home, we go and look at dwellings, seek professional assistance, learn what is valuable to us, examine the costs and crunch the numbers.  The same can be said for choosing a college.  We start to look well in advance of high school graduation, visiting institutions and coming to an understanding of what is required, what is desirable and what is affordable.  Both of these examples have one thing in common that the majority of long term care purchases don’t: the amount of time we start investigating before the actual need arises.  It seems most long term care is purchased rather quickly.  An event occurs, many times a fall, and then it is decided that assistance is needed, immediately.

Some of us have thought well in advance and purchased long term care insurance.  If you are fortunate to be able to afford a long term care insurance plan, it can provide much assistance.  If you can’t afford insurance, your life savings, assets and pension income will have to suffice.  And since it is the last large purchase you will make, it would seem prudent to investigate long term care scenarios with the luxury of time on your side, not with urgency.

As when purchasing a home or deciding on a university, you can opt to hire a professional who can help you plan for long term care.  You may already have a financial planner or an accountant.  However, I would consider investigating an elder care attorney and/or a gerontologist.  These professions are specific to our discussion.


Figuring out Long Term Care on your Own?

 

If you wish to investigate the costs of long term care on your own, there are many ways to proceed.

  • On the internet, there are sites that profess to publish the costs of senior care.  Some of them are insurance company sites.  Most often, the figures they provide are estimates or averages.  In my experience, I have not found any site that can tell me what the actual cost of long term care is.  And they can’t, because they have no idea what you want or need.
  • In order for you to establish what the cost of long term care is, for you, you must gather information on long term care facilities or scenarios that interest you and compare them.
  • Whether you use a professional or not, I strongly advise you to visit several long term care facilities, speak to others about different senior care scenarios, gather as much information as you possibly can and start the process of completely understanding your own financial situation and possible future needs.  It sounds like a difficult task, but you will be amazed at how well you will do.  You just have to start.

Take your Time in Choosing a Facility.

Remember, no one can tell you what house or apartment to buy, or what college to attend.  In the end, these are your decisions.  Take the time to understand the differences between private-for-profit facilities, secular non-profit facilities and religious-based providers.  Visit as many facilities as you can.  Eat the food.  Chat with the staff and definitely talk with the residents.  Ask how many doctors are on staff at any given time.  How many registered nurses?  How is their physical and occupational therapy department?  See what social amenities are available.  Hang out.

If you think you like a place, go back a second time.  Eat again.  Talk some more.  There are many aspects to investigate.  Make sure you take a pad and pen.  And leave with every piece of paper they can give you, including a sample contract and a list of ancillary costs.  If they don’t offer them, ask.

Remember to Factor in all Costs.

In my experience, there are generally two main costs of long term care: an entry fee (if there is one) and a monthly fee.  These are usually based on the physical size and type of accommodation and vary with spouses or companions and levels of extended care, such as deals on eventual skilled nursing care.  In addition, there are ancillary fees that I mentioned above.  These are usually items like telephone, cable TV, incontinence supplies, medication packs, etc.  The list can be very long and can include items you think are covered by the monthly fee, such as meals or laundry.  Obviously, they can add up.

Once you’ve established what the costs are for several long term care facilities and you’ve charted your own income and worth, you can then project out into the future and see what is affordable for you.  No one has a crystal ball, so projecting is equal parts science and luck.  The prudent person will revisit the calculations whenever changes happen and make the appropriate adjustments, if needed.

This isn’t rocket science, folks.  But it does take work, work that is for your benefit.  And in the end, you’ll be glad you did it well in advance of when you need it.

Written by Guest Blogger Bill Fabrizio.

Bill Fabrizio is the author of The Senior Care Calculator,
www.seniorcarecosts.com It is a free website that assists people wishing
to make sense of the financial costs of particular long term care
facilities they are interested in and visit.  His website is an outgrowth
of experiences helping his mother choose a senior care facility.

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Changes to Nursing Home Disclosure Rules

As of March 23, 2011, the Affordable Care Act requires administrators of long-term care facilities to notify residents in writing at least 60 days prior to a skilled nursing facility’s closure. Nursing home administrators are also required to provide written notification to the Department of Health and Human Services and to the state’s long-term care ombudsman. This is a change to the current 30-day requirement. New nursing home disclosure rules

Failure to comply with these new requirements can result in serious civil financial penalties up to $100,000. Administrators may also face disciplinary action, including denied future participation in any federal health care program.

Notification must contain a state-approved relocation plan as well as assurances that residents will be transferred to another appropriate facility based on their individual needs and circumstances.

Anthony Cirillo, About.com’s guide to assisted living, notes that these requirements apply only to nursing homes–not to assisted living facilities. However, some states, such as New Jersey, are moving in that direction by requiring assisted living facilities to set up escrow accounts to protect residents in case of a sudden facility closure. Currently, many assisted living residents learn a facility is closing only when the sheriff comes knocking at the door, and these residents are left with no assistance and no back-up plan.

New regulations are also being considered that would prevent senior living communities–specifically, assisted living homes–from evicting Medicaid-eligible residents once they’ve exhausted their personal finances. Private pay rates are higher than Medicaid daily payment rates, so a higher ratio of private pay residents can have a significant impact on a facility’s bottom line. While not a common practice, consumers should be prepared with a back-up plan to protect loved ones in the event of a sudden eviction or facility closure until federal regulations are enacted to protect consumers.

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Congress Passes National Alzheimer’s Project Act

On December 15, 2010, the House of Representatives passed the National Alzheimer’s Project Act, passed by the Senate the week prior. The National Alzheimer’s Project Act is a ground-breaking piece of legislation that will create the first-ever government office to coordinate research and treatment efforts targeted to Alzheimer’s disease. The Act now awaits President Obama’s signature. A small win for Alzheimer's sufferers

Alzheimer’s disease has been drawing attention in recent months, due to an increasing awareness of the projected drastic increase in the number of people diagnosed with the disease. Both the aging population and improved diagnostics mean that more people will be diagnosed with Alzheimer’s disease in the coming years; in fact, the World Alzheimer Report 2010 estimates that an astonishing  65.7 million people worldwide will be living with Alzheimer’s disease by the year 2030. Presently, that figure is 35.6 million — 5.1 million people in the U.S. alone.

The rapidly growing number of people affected by the disease, which is multiplied when accounting for family members and friends whose lives are impacted when a loved one suffers from dementia, contributes to skyrocketing costs of caring for the millions of individuals with Alzheimer’s disease. The National Alzheimer’s Project will promote awareness, coordinate funding and other efforts related to finding a cure, researching more effective treatments, and caring for and supporting individuals and their families presently affected by the disease.

In a statement, Eric J. Hall, President and CEO of the Alzheimer’s Foundation of America, says, “We hope that the passage of the National Alzheimer’s Project Act marks a turning point in our nation’s attention to and funding for this disease. The challenges that lie ahead are enormous and only by coming together can we make progress toward care and cure.”

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Assisted Living: Increased Levels of Care May Come at a Cost

Assisted living and other long-term care costs continue to rise – that much isn’t new.  Most assisted living residents pay for care on their own or with funds from family members.  Annual cost increases to cover rising expenses are expected, but some families are subject to more significant hikes periodically if their loved one is moved to a higher level of care due to a decreased ability to adequately perform activities of daily living, such as bathing, dressing, or toileting. Rising assisted living costs

The MetLife Mature Market Institute’s 2010 Survey of Long-Term Care Costs shows that the national average daily rate for a private room in a nursing home is $229, while a semi-private room is $205, up from $219 and $198 respectively in 2009. The national average monthly base rate among assisted living communities rose from $3,131 in 2009 to $3,293 in 2010.

“It’s important for people to remember that their loved one is entering assisted living because they need services,” David Kyllo, executive director for the National Center for Assisted Living (NCAL) , tells The New York Times in a December 7, 2010 article. He says a move to assisted living is typically needs-driven, and a decline in health status as time goes on is expected. While a loved one’s declining health often comes as a shock to family members, increased costs don’t have to.

Miriam Oliensis-Torres, who runs a geriatric care management firm based in Milwaukee, says the admissions process is typically a stressful time for families. She recommends consulting an attorney to review a contract, or even outright asking for the agreement to be explained in layman’s terms.

If assisted living costs rise due to increased levels of care, and the family disagrees, enlisting the help of a geriatric care manager can be useful. Case-in-point: Don Heape, who was overseeing the care for his eldest sibling, Marcella Festner (who was 80 at the time she was admitted to assisted living and died this summer), asked a geriatric care manager to review the facility’s decision to bump Ms. Festner up to a higher level of care after just a few months. The decision nearly doubled the family’s monthly fees – from $2,200 per month to $4,000 per month. The family was successful in appealing one price increase.

Not everyone can afford the services of a geriatric care manager, however. Hourly fees can range from $80 to $200, depending on geographic region. If geriatric care management fees are out of reach, Oliensis-Torres advises consulting your local or state long-term care ombudsman for help.

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Guardianships Can Help Protect Assets

The number of elderly persons subject to neglect, abuse and financial exploitation will surge in coming years due to the aging baby boomer generation, according to a November 29, 2010 report in The Post and Courier. Nationally, little has been done to protect the incapacitated elderly population, which will surge to 71 million – double the number of persons 65 and older today – by the year 2030. Guardianships protect incapacitated elderly

Guardianships – a legal arrangement in which an appointed person serves to make decisions regarding finances and/or healthcare – have to date been the best source of personal protection for the elderly, but a lack of training and monitoring has contributed to a failure of this system in many instances. A September study conducted by the General Accounting Office (GAO), the investigative arm of Congress, found that “there continue to be instances where some guardians have taken advantage of the elderly people they are supposed to protect.”

This isn’t the first warning regarding a lack of protection for the elderly. The GAO issued a similar report in 2004, which made little impact in relation to regulatory changes that would improve monitoring and training for court-appointed guardians. This time around, however, some states are taking notice. South Carolina, which has an elderly population higher than the national average, is considering modifications to the state’s probate code regarding how the courts handle cases of elderly abuse and neglect. Other states will likely follow, which will improve the security of guardianship services as a valuable tool to protect incapacitated elderly persons in the coming years.

Protecting the interests of our elders

Guardianships exist to help protect the elderly from financial exploitation and abuse, particularly in cases in which there are no family members who can serve in the role. A person appointed by the individual or the court oversees financial and/or healthcare decisions, including decisions involving placement in assisted living or skilled nursing care, including oversight of care received for persons already residing in senior living communities.

There are three legal documents that all incapacitated elderly people should obtain to protect their assets: A last will and testament describes how possessions will be distributed, typically handled by a designated executor. A durable power of attorney assigns a person to handle finances and contractual relationships in the event that the person becomes incapacitated. Finally, a healthcare power of attorney (POA) and living will designates a person to handle medical decisions in the event that the person becomes incapable of healthcare decision-making.

It is also important to preserve the incapacitated elderly’s ability to obtain Medicaid coverage, which is contingent on a person meeting financial eligibility criteria.  Those who have five years to plan can use an irrevocable trust established by an attorney, which can protect assets from consideration and avoid the need to “spending down” in order to qualify.  Assets are transferred into the trust and — after five years — assets held in the trust cannot be counted when applying for Medicaid.

An outright gift can be given to the guardian which will protect half of a person’s assets if application for Medicaid is likely to occur prior to five years in the future.  The other half may be protected by a Medicaid annuity.  This technique can be used immediately, even if the individual is already receiving long-term nursing care.

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Stricter Regulations and Higher Fees Place Strain on Assisted Living Facilities

Assisted living facilities in many states are struggling under Medicaid funding cuts. On Sunday, November 14th, the Augusta Chronicle reported on the especially fragile state of South Carolina’s assisted living industry. The state’s nearly 500 assisted living facilities are struggling under proposed tighter fire regulations and increased fees that could cause facilities to shut down, leaving residents to find new housing. In addition, many facilities are opting to refuse residents who are receiving public assistance or would be difficult to evacuate in the event of a fire, in order to more easily comply with new proposed regulations. New SC regulations throw assisted living facilities off balance

The new proposed state regulations for South Carolina assisted living facilities, which have also reduced the required staff-to-resident ratio in recent years, would now require staff to be able to completely evacuate all residents in under eight minutes in the event of a fire; if they are unable to do so, a sprinkler system must be installed. Per-bed fees (currently $10) would also be doubled over the next three years.

State officials say the move is reasonable because fees have not been increased since 2001, and inflation has contributed to increased costs for inspections and quality control. A lack of funding would mean the quality of facility oversight would suffer, and in turn, resident satisfaction could decline. In addition, the senior population in South Carolina is growing, as it is in the U.S. as a whole, which will place additional strain on state resources.

Assisted living facilities that would be hit the hardest by the proposed changes are smaller — those with 20 or fewer residents, which typically rely primarily on Medicaid funding. Among larger facilities that house more than 20 residents, 86 percent of residents are paying privately. Private pay fees are higher than Medicaid reimbursement; this combined with the higher total number of residents contributes to larger assisted living communities being able to weather the financial storm more easily than those with fewer residents.

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Nursing Homes, Assisted Living Fear Medicaid Cuts After Political Shake-Up

The November 5, 2010 election brought about some changes in the federal government, with the Republican party earning the majority of seats needed to take over the House of Representatives. Healthcare reform has been a major bone of contention between Democrats and Republicans since Barack Obama was elected U.S. President in 2008, and the GOP-controlled House now has the power to block some major reform proposals. The fact that Republicans failed to earn the majority needed to take control of the Senate, however, should make for some interesting political discourse over the next several months as both sides fight to secure their stance in the heated healthcare debate. U.S. Senate

Nursing homes, which have benefited from Democratic-led enhanced Medicaid funding for states,  have expressed particular concern over the shake-up. Kaiser Health News reports on several credible news outlets who have covered the issue, including The Hill, McKnight’s Long-Term Care News, and Modern Healthcare. According to The Hill, nursing homes and assisted living facilities rely on Medicaid payments for approximately two-thirds of resident funding, and a return to the standard federal rate could prove devastating financially.

If Medicaid spending is cut, the CLASS Act is one component of reform that could help fill in the gaps. However, few employers have signed up to participate in the program thus far. Further, some Republican leaders are moving to repeal the CLASS Act out of fear that it, too, will incur additional government spending if employee contributions aren’t sufficient to cover costs.

According to Bruce Yarwood, President and CEO of the American Health Care Association (AHCA), long-term care was an issue that hasn’t received the necessary attention so far in the ongoing healthcare reform debate. He says the AHCA has reached out to the Centers for Medicare and Medicaid Services (CMS) and the Brookings Institution to create pilot programs that would revamp the current payment system: Instead of issuing payments based on the type of residential care setting, payments would be made based on each patient’s individual condition and needs.

Yarwood says that if enhanced Medicaid payments are on the table next year, the AHCA will continue to fight in favor of an extension.

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Medicinal Marijuana Could Be a Sticking Point for Nursing Homes

Tomorrow, November 5, 2010, eight states will vote on the controversial medical marijuana issue, and could potentially legalize medicinal use of the substance. If it should become legal, skilled nursing facilities will have a few issues of their own to address. The federal government considers marijuana to have no medicinal value, so allowing residents to use marijuana for medical purposes can pose some interesting legal quandaries for facilities. Marijuana on the ballot

States voting on the issue include Arizona, North Carolina, Illinois, Ohio, Massachussetts, Pennsylvania, New York, and South Dakota.

In states where medical marijuana is already legal, some nursing homes have enacted policies and procedures for storing and dispensing the substance to residents. But in some states, such as Alaska, senior housing facilities are not required to accomodate residents who use marijuana medicinally. This decision brings up ethical concerns involving patient choice, and takes away from culture change widely being implemented in the senior living industry, which promotes resident empowerment and choice.

To further complicate matters, facilities who do choose to permit residents to use medical marijuana could face the loss of Medicare and/or Medicaid reimbursements because of government red tape. The loss of federal payments would be devastating for the majority of senior housing providers.

Some states, such as Maine, have changed laws to permit skilled nursing and inpatient hospice facilities to act as registered medical marijuana caregivers, which would enable the facilities to obtain the substance through a dispensary and subsequently dispense it to residents. Dispensaries measure and package doses, so that facilities are able to maintain a proper inventory as they do with all pharmaceuticals. Other states, including New Mexico, are following suit by implementing similar legal frameworks.

Read the related article in McKnight’s Long Term Care News.

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Senate Probes CCRC Risks

Continuing Care Retirement CommunitiesThe United States Government Accountability Office (GAO) issued a report to the U.S. Senate’s Special Committee on Aging in relation to continuing care retirement communities (CCRCs). The study was conducted because recent economical stress has caused financial hardship for some CCRCs, and the Senate was interested in knowing whether this added financial concern posed risks to seniors who choose to invest their funds in a community with the promise of being cared for through all stages of aging.

CCRCs operate by ensuring residents that they will be able to age in place, without having to relocate to facilities that can provide a higher level of medical care as their needs increase. Residents have to pay a significant upfront cost, or “buy-in” when they move into a CCRC. When financial turmoil strikes, if a CCRC has to close its doors, residents could risk losing their money. The GAO investigated these risks, along with state regulations that may help to prevent such financial catastrophes.

Bankruptcies and foreclosures have been rare, and in such cases, residents are typically not forced to move out. However, sudden increases in monthly fees or changes to regulations can leave residents dissatisfied. If a total failure were to occur, residents could be at risk of losing all or part of their entrance fees.

While these risks do exist in rare cases, the GAO found that most states have regulations that protect the interest of CCRC residents, including requiring the escrow of entrance fees, eliminating the risk of a resident losing their investment. However, in some states, there is no requirement for changes in policy affecting resident care, services, or other benefits to be disclosed prior to changes taking effect.

The recent investigation into these concerns will likely lead to an increase in state and possibly federal regulations, in light of recent economic conditions that can make such changes, fee increases, and risks more likely.

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