For some families, the golden years are turning nightmarish, thanks to state laws that some nursing homes are using to try to gain guardianship -- and financial control -- of their older patients.    Max Kaplan has been residing in a Bronx Nursing Home since 2011. He is of both sound body and mind. He does not need a nursing home. He is not ill, nor does he need any medication. He is one of the unlucky elders who has been adjudicated as an "incapacitated person," unable to manage his personal affairs, medical situation, or his finances. Max worked hard most of his eighty years. He has no family, earned enough money to buy a small home, and put away a few dollars for retirement. His house was not in good repair, but he managed to get by. In 2011 he went into the hospital for a minor surgical procedure. He never saw his home again. The hospital told Max that for them to discharge him back to his home, he would have to agree to allow a social worker to visit his home to determine if it was safe for him to return. Although everything in his home was in working order, the social worker determined that some repairs were needed and that he could not return home. She called Adult Protective Services, who agreed that Max could not return home. Max was sent to the Bronx nursing home for physical and occupational therapy, which he did not need. The hospital promised that after spending two weeks in the nursing home, he could go home to arrange for repairs, which he agreed to make.  When Max was admitted to the nursing home, he refused therapy and insisted that he be allowed to go home. After two weeks, he was not allowed to return home. He tried to leave the building. The facility administrator called the police who were informed that Max was mentally incapacitated and had nowhere to go. The nursing home filed an Article 81 petition to have a guardian appointed for Max, an "alleged incapacitated person." A guardian must be a person or entity, it cannot be a nursing home. Max was assigned a non-profit entity to become his guardian. Some of these entities are considered guardianship mills. The guardian allowed the facility to apply for Medicaid, took his $50,000 nest egg to pay privately for nursing home services Max did not ask for or need, sold his home and furniture, and took his social security and pension payment to pay for his care. He is allowed $50.00 monthly for personal incidentals.  Except for court appearances, Max is not allowed to leave the building for any reason. No one can sign him out; a right allowed all nursing home residents. His guardian is not responsive. Guardianship abuse is worse than identity theft from which one can recover. A guardianship is a life sentence.   Guardianship is one of the most ethically fraught aspects of the eldercare system, hinging on the most sensitive questions about personal liberty, medical responsibility, and...

The term 'spousal refusal' may sound downright selfish, uncaring, and mean, but for the well spouse and the rest of the family, it could mean financial survival.   The obituary of Woody Guthrie says he died a divorced man. It is true, and it is wrong. True as a matter of law, his widow said, wrong as a matter of the heart. This legendary folk‐balladier, this quirky, rusty‐voiced wanderer whose thousand songs echoed the glory and the pain of America, died in 1967 after 13 years in state hospitals. He was 55 when Huntington's disease took his life and long before the end he could neither move nor speak nor write. “We had agreed that we didn't need a piece of paper to hold us together.” said his former wife, Marjorie Guthrie. “I never really divorced him in my heart and in my actions. Divorce was an opportunity for me not to be responsible financially for his hospitalization.” The couple had three young children, and it was decided that Marjorie's meager income — as a professional dancer, an assistant to Martha Graham and later, founder of her own dancing school — would be barely enough to support them. “That's what I did to face my reality,” she said. “To decide that the kids would have enough to eat and someone to watch over them while I worked. People forget that we were poor. They ask: ‘What was it like to be married to a famous man?’ But we were poor all during his lifetime.” Federal Medicaid law states that the community spouse can keep all of his or her assets by simply refusing to support the institutionalized spouse. This portion of the law, known as "just say no" or "spousal refusal," is generally not used except in New York and Florida, where the states have adopted the federal law in this area, and in Connecticut, where a federal court has upheld this right. Under the law, if a spouse refuses to contribute his or her income or resources toward the cost of care of a Medicaid applicant, the Medicaid agency is required to determine the eligibility of the nursing home spouse based solely on the applicant's income and resources, as if the community spouse did not exist.  In 2005 a federal appeals court upheld the right of the wife of a Connecticut nursing home resident to refuse to support her husband. The husband was able to qualify for Medicaid coverage, and assets that he had transferred to his wife were not counted in determining his eligibility. Granted, the term Spousal Refusal sounds mean-spirited. Should an individual be allowed to legally walk away from his or her spouse's long term care bills? Some background on the subject may lead you to respond affirmatively. But legislative changes in the late 1980s and a major overhaul in 2003 have closed some loopholes, and the eligibility requirements for Medicaid have been eased; they were further relaxed under the Affordable Care Act of 2010, in an expansion that some but not all states have embraced. Such changes...

"Elder Orphans" or "Solo Agers" do not have to live in fear. Through proper preparation and arrangements in place, they should be able to grow old with grace and peace of mind.   It was a memorable place to have an "aha" moment about aging. Joseph Saranac had taken his 84-year-old father, who'd had a stroke and used a wheelchair, to Disney World. Just after they'd made their way through the Pirates of the Caribbean ride, nature called. Saranac took his father to the bathroom where, with difficulty, he changed the older man's diaper. "It came to me then: There isn't going to be anyone to do this for me when I'm his age, and I needed to plan ahead," said Saranac, now 63, recalling the experience several years ago. Saranac never married, has no children, and lives alone. Like other "elder orphans" (older people without a spouse or children on whom they can depend) and "solo agers" (older adults without children, living alone), he's expecting to move through later life without the safety net of a spouse, a son or a daughter who will step up to provide practical, physical and emotional support over time. If you are single and have no kids, scare stories are made for you. Some are familiar: You are going to become a bag lady. You are going to grow old alone. You are going to die alone. Now, in case single people have become too inured to these old threats or too uppity to fret about them, a new one is making the rounds: They are going to end up as "elder orphans," with no one to care for them as they become old and frail and vulnerable. "There is potentially no structure to address this population as this population is hidden right before us," added Dr. Carney, who calls the group elder orphans because they are aging alone and unsupported, with no known family member or designated surrogate to act on their behalf. "Our goal is to highlight that this is a vulnerable population that's likely to increase, and we need to determine what community, social services, emergency response and educational resources can help them."   Related Posts Come Fly With Me… Aging In Place Can Be A Godsend Home Health Care For Elders. Affordable Or Not?   Like those who do have family, these groups want to stay as independent as possible for as long as possible. They are also interested in a healthy lifestyle, based as much as possible on outdoor living – at least in the warmer months. They want choice – in as many areas as possible. They have been the masters of their universe for a long time, and they will not easily give up that privilege. They may not have family around, but they have friends, and those friends are essential to them. They also want to continue to pursue learning and development, even as they approach their centenary mark.  "This is an often overlooked, poorly understood group that needs more attention from the medical community," said Maria Torroella Carney, the study's lead author...

Pre-dispute arbitration agreements are allowed, but nursing homes will not be able to require these agreements as a condition of admission.   My Elder has been warning elders and their families about the very dangerous arbitration clause in nursing home admission agreements.  An arbitration clause is a clause in a contract that requires the parties to resolve their disputes through an arbitration process. Although such a clause may or may not specify that arbitration occur within a specific jurisdiction, it always binds the parties to a type of resolution outside the courts. An arbitrator's decision can’t be appealed in a court of law. The history of binding arbitration agreements has been checkered. In October 2016, the Obama administration banned their use in long-term care facilities, but a legal challenge and subsequent injunction forestalled that effort. Then, in June 2017, under a new administration, CMS (The Centers for Medicare & Medicaid Services) proposed a rule that would remove the ban and sought public comment. Long-term care providers are strongly in favor of arbitration agreements, which they say result in quicker resolution times at lower costs. What is Pre-Dispute Arbitration? Arbitration is a legal process in which a dispute is settled by one or more arbitrators who decide the outcome instead of a jury made up of members of the community. “Pre-dispute” arbitration means that the consumer must agree to arbitration before any dispute arises. Pre-dispute arbitration agreements are increasingly included in nursing home and other long-term care facility admission contracts that consumers or their families must sign in order for the consumer to be admitted as a resident. Once signed, these agreements bar consumers from seeking legal action in court should they suffer harm or injury while residing in the facility. The Supreme Court has upheld the right for such agreements to be included under the Federal Arbitration Act. Why is Prohibiting Pre-Dispute Arbitration Agreements Important to Long-Term Care Consumers? Pre-dispute arbitration agreements place consumers at a disadvantage during the admissions process. Nursing home admissions are usually unplanned and often happen when individuals and their families are under pressure to enter into facility care as quickly as possible.  Pre-dispute arbitration agreements are generally offered on a “take it or leave it” basis by facilities. Consumers may be forced into signing an arbitration agreement because “leaving it” and trying to find another place right then and there is not an option. Arbitration agreements can often be buried within the fine print of admission contracts and may go unnoticed by many consumers given the huge amount of paperwork that must be signed during the admissions process.    Related Posts Nursing Home Evictions Have Reached Dangerous Proportions Medicare Home Health Coverage: You don’t have to improve to qualify for Medicare coverage! How To Complain TO A Nursing Home… Or ABOUT A Nursing Home   Strip consumers of their constitutional right to a trial by jury When consumers sign an arbitration agreement, they sign away forever their constitutional right to a trial by jury. Such a decision should be given careful consideration. However, individuals and their families are pressured into signing blanket arbitration agreements in advance, without having any idea what...

Aging in place may sound simple, but there is more to it than just seniors choosing to live in their homes for as long as they can.   What exactly is aging in place? The goal of aging in place is to help seniors live in the residence of their choice, for as long as they are able and get any help they need for as long as they can. That sounds kind of simple but there is more to it. It is about maintaining and/or improving quality of life. In order to do that, you need a good plan that focuses on your quality of life. This plan should be maintained over time as your situation changes just like you review your will from time to time. Aging in place is a choice and is not relegated to “old” people. A couple with a growing family who moves from the started house to a bigger one can imagine a day when the kids are grown and wonder if they could grow old in that house. As we get older, most of us come to a realization that the home we are living in – no matter how long that has been or why we selected that particular home – will continue to serve our needs as we get older. Even when that is not entirely true without a few modifications or improvements here and there, staying put is far preferable to the alternative which is looking for someplace else to live and then moving everything we have to that new location. This doesn’t even factor in any type of financial or economic considerations with disposing of our current home, acquiring the next one, and making the move itself. There is a small but active movement to encourage seniors to forego their current home in favor of something else – to escape aging in place in the home where this has been happening, and can continue to unfold, in favor or starting all over in something different. It’s true for a very small number of people that the costs to renovate an existing home for vertical circulation, relocating a bedroom to the main floor, or finding an accessible entry route into the home, may be quite challenging and expensive. Going someplace else that is move-in-ready with none of the challenges that the current home has can make sense for these individuals.   Related Posts Medicare Home Health Coverage: You don’t have to improve to qualify for Medicare coverage! Home Health Care For Elders. Affordable Or Not? 10 Reasons Why My Elder is Different than Other Senior Care Placement Services   However, moving from a situation that requires modifications into a home that is newer but still requires several modifications is not a good idea. The existing home already has a history with the occupants, so make the modifications there. Why trade one set of shortcomings for another just by moving into something that might be a little newer or more desirable? However, moving to a safer neighborhood would be a consideration outside...

Medicare's coverage allows homebound people to get the necessary care and therapy they need. Unfortunately, this level of care has been very difficult to obtain in reality.   The Problem: Medicare home health coverage can be a robust resource to help people who qualify remain at home with the necessary care. However, in recent years, coverage and access to home health care have been shrinking. The Centers for Medicare & Medicaid Services (CMS) regularly describes Medicare home health coverage as a short-term, acute care benefit. This is not true. As a result of this CMS perspective, however, which is reflected in Medicare home health payment and quality models, even people who meet the law’s coverage criteria (homebound and needing skilled nursing and/or therapy), are denied coverage and access to needed care. Further, qualified beneficiaries are only able to access the bare minimum of home health aides – often only 1-3 hours, for a bath, not 28-35 hours combined with nursing, for an array of personal care, as authorized by the law. Background: Medicare covers certain care provided at home for people who are homebound, as defined by the law, and who need and receive skilled nursing and/or therapy. The skilled services can be provided to improve or maintain or slow the decline of an individual’s condition. Individuals who meet these criteria are eligible for coverage of skilled nursing and/or therapy as well as for home health aides, medical social worker care, and some supplies. Under the law, the care can continue indefinitely, so long as the coverage criteria are met, including for up to 28- 35 hours of nursing and home health aides combined. Unfortunately, in practice, this level of care is often difficult to obtain.   Related Posts Nursing Home Admission Agreement: Be Careful About How You Approach This Document Home Health Care For Elders. Affordable Or Not? Is the Doctor In? The Physician’s Role in Long-Term Care   Case Studies: Ms. W contacted us on behalf of her husband who has ALS and has been receiving Medicare-covered physical therapy at home as well as home health aide services. As a result of the physical therapy, his pain has been significantly reduced, he is able to transfer independently, and his bowel function has improved. Nonetheless, the home health agency told Mr. R that it was ending his home health care as he was not improving and no longer needed skilled physical therapy. My Elder appealed and the issues were resolved. Ms. D contacted us because her mother who is 94 years old with multiple comorbidities, was told orally that her care was going to end because she wasn't improving. She did not receive written notice. The proposed discharge was for the nursing, Physical Therapy, and Occupational Therapy that her doctor ordered to maintain her skin integrity and help her continue to be able to transfer out of bed into her wheelchair, ambulate a bit with a walker, and maintain the ability to perform activities of daily living as independently as possible. My Elder appealed and the issues were resolved. Additional Information About JIMMO SETTLEMENT In...

More than 80 percent of Americans over 50 say they want to remain in their home as they age, according to AARP.    The seniors most likely to need paid home care to maintain independent living are the least likely to be able to afford it long-term, a new study reports. Researchers found that only two out of five older adults with significant disabilities have the assets on hand to pay for at least a couple of years of extensive in-home care. Without some help, those elderly are much more likely to wind up in a nursing home, said lead researcher Richard Johnson, a senior fellow with the Urban Institute's Income and Benefits Policy Center, in Washington, D.C. "We have this perception that the risk of becoming frail is evenly distributed across the population, but it's really not," Johnson said. "It is more concentrated among people with less education, lower lifetime earnings and less wealth." He added that aging folks increasingly want to stay out of nursing homes as their health declines, maintaining their independence by living in their own houses. But there hasn't been a large increase in the number who are shelling out for paid home care, national statistics show. To see why that might be, Johnson and his colleagues turned to data gathered by the University of Michigan's Institute for Social Research. The researchers broke paid home care down into three scenarios: limited care of 25 hours each month costing $475; moderate care of 90 hours a month costing $1,170; and extensive care of 250 hours per month costing $4,750 per month.   Related Posts 10 Reasons Why My Elder is Different than Other Senior Care Placement Services How To Complain TO A Nursing Home… Or ABOUT A Nursing Home Nursing Home Admission Agreement: Be Careful About How You Approach This Document   Initial results looked promising. The investigators found that 74% of all seniors aged 65 and older could afford at least two years of moderate home care if they cashed in all their assets, and 58% could afford two years of extensive home care. Then the researchers turned their attention to people most likely to need home care -- those suffering from severe dementia or who require help with two or more activities of daily living. These activities can include eating, bathing, dressing, using the toilet, getting out of a chair or walking across a room, Johnson said. Only 57% of those most frail seniors could afford two years of moderate home care, and only 40% could afford extensive home care for two years, the findings showed. For these people, the burden will fall hardest on their family at first, Johnson said. "Most people who become frail at older ages rely on unpaid family caregivers," he said. "Those are the people who provide the vast majority of care." Paid home care provides relief for family caregivers, giving them a "respite from the grind of constantly being on call to help a frail loved one," Johnson said. Without that respite, family caregivers are more likely to wear down. That makes it even more likely that an...

It’s a fine line.   There are those who believe that by being visible and vocal, they can get the best elder care for their loved one and ensure their safety. Other family members believe that any complaint will lead to retaliation against their loved one. Complaining can work very successfully under the right circumstances. It requires great strength and professionalism on the part of the family members. I have seen numerous cases where families were able to protect their loved ones – even in the worst facilities and under the most difficult circumstances. Those who are quiet, never question, and never ask for anything could set the stage for more abuse and neglect. In some cases family members approach the problem by paying staff members for protection against abuse. How you approach problems in a nursing home depends on how pervasive the problem is in a facility. If problems are isolated, a well-placed complaint may do the trick. If your loved one is in a facility where abuse and neglect is the order of the day, contact an elder advocate to either move them or monitor their care.   Related Posts Nursing Home Evictions Have Reached Dangerous Proportions Complaining about a Nursing Home can get you banned from a facility. Nursing Home Evictions: Know Your Rights   Before You File A Complaint With The Nursing Home...

Music, it’s a way to communicate without words directly to our emotions. When I was younger and looking for a life partner, I had some strange criteria. I cared nothing for the things that most people were looking for, stable job, completed education or all those other things that people think are important. I figured we had time to get those things together, I cared for compassion, respect and most importantly, going to as many rock concerts as I could, for as long as I could, until I drop dead.   My luck, I found the right partner, we have been to hundreds of rock concerts, if not more over the course of the last 47 years. I’m lucky I still have most of my hearing. We have seen the greats, the not so greats and the terrible, and loved every minute. Related Posts Music & Memory: Treating Nursing Home Patients With Music Wii by Nintendo: An Effective Way For Elders To Exercise and Have Fun Ageism: The Path to Elder Abuse I attended two really interesting musical events last week.   First, a client of ours invited us to see James Taylor in Providence RI. We were pleased to be able to go.  The mood in the stadium was amazing, a bunch of people who had nothing more than love for the music, the surrounding and the community.    When a performer loves what he is doing and is able to relate that to his audience, the vibe is fully encompassing.  When the audience loves the performer, the vibe is even better. The audience was mostly our contemporaries, the joy that filled the air was overwhelming. We all stood and danced throughout the show, and when you hear the stories related to the songs, it’s even more powerful. Secondly, I attended an early morning dance party called Daybreaker (www.daybreaker.com).  It starts at 6 am with an hour of Yoga then at 7 am the party starts - full on dance music, with live musicians, DJ’s, and costumes.  The crowd here was very young, but the goal was the same, love for music and community. There is no intrinsic difference between age groups, it’s all an artificial construct to slice and dice people, to create separations and competition, and of course for advertisers to segment the market.  We are the ones that buy into the hype, by saying “I’m too old for this” or “That’s for young people”. Music talks to all ages. Because the communication is non-verbal, it’s easier for us to understand and relate without pre-conceived ideas.   When we share music together, we share our emotions, we all need to be able to open our hearts and minds and allow ourselves the joy of understanding people different than ourselves, do you want to come with me to our next Rock Concert, or Daybreaker party?   Let me know and I’ll keep you posted. My Elder provides elder advocacy services to families. Talk to us about long-term planning, finding the right home for your loved ones, preventing crisis and...

In fact, nursing home eviction is the top complaint among residents. My Elder aims to protect the rights of the elders and prevent illegal nursing home evictions. Under state and federal laws, nursing homes can only evict patients for a limited set of reasons and are supposed to face serious civil penalties if they break the law and force residents out on the street. However, these same caregivers have very intimate knowledge of the regulatory system and often interpret resident behavior in such a manner that would allow the facility to expel an individual who otherwise would have remained with the care facility. People complain about nursing homes a lot: the food’s no good, or there’s not enough staff, and so on. It’s a long list, but the top complaint according to the federal government, is nursing home eviction or nursing home involuntary discharge. Nursing home eviction, or technically known as nursing home involuntary discharge brought in more than 9,000 complaints in 2015 alone. Now, a couple of states are looking for ways to hold nursing homes accountable for unnecessary evictions. Related Posts Assisted Living And Nursing Home Eviction Prevention Reduction of Bed Hold Days And Nursing Home Eviction Nationwide, 9,000 Elders Are Evicted From Nursing Homes Annually One of those states is Maryland. Brian Frosh, the state’s attorney general, says that, in Maryland, more than half of all nursing home involuntary discharges have come from just one small chain of nursing homes run by Neiswanger Management Services, or NMS Healthcare. “Your odds of getting evicted from an NMS nursing home are about a hundred times what they are of any other nursing home in the state,” says Frosh. Maryland is now suing NMS for Medicaid fraud. The suit alleges that the company charged the state for services it didn’t deliver, specifically for discharge planning. Nursing homes are supposed to make sure a resident has a safe place to go. But Frosh says that NMS sent residents with complex medical needs to homeless shelters or to unlicensed board-and-care facilities. For example, according to the complaint, a woman with severe dementia was dropped off in front of her son’s home. Someone from NMS “just opened the car door and let her out and drove away,” says Frosh. “Her son found her wandering around several hours later when he came home from work.” This is clearly an illegal nursing home eviction or nursing home involuntary discharge. The company’s motivation was purely financial, says Frosh. To understand his argument you need to know two things. First, Medicare pays nursing homes a lot more than Medicaid does. And, second, Medicare payments for long-term care only last for 100 days, and can only be used for skilled nursing care. Frosh says that NMS evicted hundreds of residents just as they were transitioning from Medicare to the lower-paying Medicaid. “We cite emails in the complaint that offer a bounty for getting patients out quickly,” says Frosh. “A hundred bucks is offered for somebody who can make a bed vacant within two hours.” That made more room for new patients...