New York Elder Law Attorney Blog

Long-term care researchers at the University of California San Francisco released a report today which offers a comprehensive analysis of the quality of care provided at for-profit nursing home nationwide. The gloomy finding should give pause to all those in our area who are seriously contemplating their long-term New York elder care needs. The researchers pointed to significant quality of care concerns at many nursing homes based mostly on poor nursing staff levels. The data was culled from a comprehensive assessment of the nation's largest for-profit long-term care facilities. An article on the research was published for the first time in today's Health Services Research and is being heralded as the first-ever study focused solely on quality at the nation's ten largest for-profit nursing home chains--many local nursing facilities were included in the analysis.

The main take-away from the research is that the quality of care is low at many nursing homes but for-profit facilities have a particularly poor track record. Dr. Charlene Harrington, the lead researcher explained, "The top ten chains have a strategy of keeping labor costs low to increase profits. They are not making quality a priority." In most cases the study found that quality deficiencies were tied to inadequate nursing levels. With fewer trained medical professionals providing close care to the facility residents, medical problems were more likely to go unnoticed and preventable complications were more prevalent.

This new research on for-profit nursing homes comes on the heels of changing business trends in the industry. While the largest nursing home companies were formerly publically traded, they have recently been purchased by private equity investment firms where investors sharing the profits (or losses). Many have raised concerns that this shift may incentivize significant cost-cutting which would harm the residents who live in these homes. This study--and several others--have found that those concerns may be apt, as many of these facilities have shed registered nursing staff members after being acquired by the private equity companies in an effort to trim payroll costs. As a result, these for-profit facilities have fewer staffing hours than non-profit and government run facilities. Not surprisingly, for-profit facilities were cited for 50% more serious care deficiencies by inspectors.

The sad reality is that many local seniors may end up in these chronically deficient homes, particularly when they have not conducted any elder care planning. The ten chains included in this study represent nearly 2,000 facilities nationwide, housing 13% of all nursing home residents. The New York elder law attorneys at our firm urge all residents to ensure they have quality options for long-term care by taking the time to plan for these affairs well before they are actually needed.

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All those with an eye toward New York Medicaid planning have been closely following the actions of the federal "Super Committee." This unique federal, bipartisan committee was charged with coming up with a long-term federal deficit reduction plan totaling $1.2 trillion over 10 years. Failure to reach an agreement on any plan will trigger automatic and deep cuts to a variety of federal funding areas, including Medicaid. Considering that New York Medicaid programs are funded jointly by the federal government and state government (including local governing bodies), the Super Committee's decision (or lack of decision) may ultimately have significant impact on local program participants.

We now know that the Super Committee has reportedly not reached an agreement. This means that the triggered cuts will likely take effect, so long as national leaders don't reach some other agreement. This presents a troublesome situation for all those who rely on these programs for basic services; though it remains unknown exactly what effect the potential cuts will have on local residents. In a pre-emptive move, New York Governor Andrew Cuomo sent a letter to the state's congressional delegation last week urging them to do everything in their power to prevent blanket cuts that may do much more long-term fiscal harm than good.

In the letter, reprinted in the Times Union, the Governor reminded our state's federal delegation that the Super Committee's actions or the resulting automatic cuts will "have a direct and significant impact on the finances and economy of the state of New York." Recognizing the long-term viability problems caused by our current federal debt, the Governor argued that progress can be made on the debt front without taking an axe to New York Medicaid and other programs that local citizens have come to rely on.

State Medicaid changes have made local news recently as proposals have been brought forward to save costs and shift the local government burden entirely onto the state. However, the state has thus far managed to avoid any major changes to reimbursements or qualification levels. Yet, the program may still be changed in ways beyond the Governor's control because of these federal issues. In his letter Cuomo explained how dramatic changes in Medicaid reimbursement rates may have a "catastrophic impact on New Yorkers and our economy." Proposed cuts in Medicaid and Medicare to the state may total $2.4 billion. Governor Cuomo noted that the result of such cuts would be "closure of fiscally fragile health care institutions, impact individual access to services, and displace thousands of heath care employees."

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Last week the Director of the New York State Office for the Aging held the first-ever New York Caregiving and Respite Coalition Conference. Over 120 participants attended the event, which was meant to honor all those family members across the state who provide vital services to their friends and family members in need of New York elder care or disability assistance. Literally hundreds of millions of caregiving hours are provided every year in informal settings by community members who provide anything from around the clock help to periodic aid to seniors and disabled residents. As an AARP report last month revealed, the value of the senior care services provided free of charge dwarfs the total care provided by public bodies, usually via Medicaid. Specifically, the report found that New York coffers alone are saved $3.2 billion because of the work of these friends and family members.

Recognizing the sacrifices made by so many family members was at the heart of Governor Andrew Cuomo's issuance of a proclamation declaring November as Caregiver Recognition Month. In making the statement at last week's conference, the Governor explained of family caregivers that "their commitment, generosity and dedication make a profound difference in the lives of others and reflects the best of the Empire State."

Our New York elder law attorneys know the impact that family caregivers have on the lives on their loved ones--and on the state's entire elder care system. As the Governor explained in his address, the state estimates that more than 50% of senior New Yorkers would likely be placed in institutional settings without the aid of unpaid caregivers. These nursing homes and other special facilities are rarely the preferred living option of seniors who are almost always happier when they age in place, close to their loved ones.

Conference participants also used the occasion to discuss ways to strengthen the New York State Caregiving and Respite Coalition (NYSCRC). In particular, it is hoped that a stronger and more expansive caregiver support services network can be developed statewide. Ideally this system would increase access to respite services for all those friends and family members who are providing New York senior care informally. Participants also hope to raise awareness of available services for caregivers. Many of those currently helping disabled residents do not know what resources are freely provided to help ease the burden on these volunteers. The New York State Office for the Aging has created and made available a variety of programs, services, and resources, and local residents should visit the office's Resource Guide to gain access to these helpful materials.

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The Bellingham Herald discussed an often overlooked but vital matter that is of serious concern to our New York elder law estate planning attorneys: elder financial exploitation. Our work helping local residents avoid the probate process, save taxes, and plan for disability, involves elements of trust and relationship-building. Yet, we understand that there are some criminals who are bent on building up trust with seniors only to use their position of influence for their own gain. These fraudulent actors can be found in various settings, from nursing homes and assisted living facilities to one's own network of friends and family. All local seniors must remain alert to these dangers.

Prevention is particularly important with elder financial abuse, because after the crime is perpetrated there is often little that authorities can do to correct the harm. The Herald story discussed one senior who lost nearly $775,000 in a scheme in which he thought he was investing money only to learn that it was being stolen. The company in which he invested filed for bankruptcy and as was later described as a mere Ponzi scheme. The man leading the fraudulent enterprise was arrested, but the money taken from the senior victim was gone.

Some advocates are raising concerns about the tools available to authorities to help these victims, making it difficult to protect them before they suffer actual financial harm. For example, at the time the victim described in this story began dealing with the fraudulent investor, that investor was already the target of multiple ethics probes for misappropriation of client funds and had actually been charged with a crime. Yet nothing was done to stop the criminal from swindling others. One advocate explained that this case is far from unique. He noted, "It is a common complaint in fraud cases involving the elderly: prosecutors, social service agencies, and attorney regulators are often slow to act, and by the time they do, the damage is done." Prosecutorial inexperience handling these cases is part of the problem. In addition, some claim that local police officials are not properly trained to handle these matters.

At the end of the day, area seniors should look into the experience, reputation, and recommendations of all those from who they seek financial counsel, from New York elder law attorneys and accountants to investment advisors. Beyond that, however, prosecutors, caregivers, and other senior advocates must work to create environments where seniors can easily report problems and have their concerns timely attended to. According to new data, authorities are currently only handling one out of every forty six reported cases of elder financial exploitation.

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The AARP Public Policy Institute recently released a new report discussing the contributions that family members nationwide make to caring for their elderly family members. Recent news has focused on how local, state, and federal governments will handle the burdens of caring for an aging population. Yet, as this new report points out, the costs bore by family caregivers actually dwarfs that spent by these public bodies. It is a reminder that long-term care planning remains more than just a necessity for seniors but also for their entire family.

The size of the numbers is undeniable. Roughly 42 million family members are acting as caregivers for their senior loved ones at any point in time, with nearly 62 million providing at least some support throughout the year. In economic terms, these caregivers provide over $450 billion in annual, unpaid care. That total is up 20% from two years before ($375 billion). These totals include the contributions of millions of area residents who provide support for aging family members whose New York elder care planning went awry or whose plan was nonexistent. The financial estimates are actually conservative. They do not account for care given by those under the age of 18. They also do not include caregivers who provide assistance outside of basic daily living tasks, like help with bathing, dressing, managing medications, and aid with finances.

It is helpful to put these family-provided long-term elder care costs into context. The $450 billion annual sum is more than the total Medicaid spending, for both basic health and long-term support services. When looking only at Medicaid support for senior care, the costs bore by families is four times larger. Researchers believe that the $75 billion increase in the previous two years was primarily caused by an increase in the total number of caregivers and hours of care provided. In other words, the allotted value of the work ($11.16 per hour) remained constant over that period of time.

The report notes various caregiving trends. Nearly sixty five percent of caregivers are women and more than eight in ten are caring for a relative over 50 years old. The "average" caregiver is a 49 year old woman that works outside the home and spends 20 hours a week providing unpaid care to her mother. Of course, countless other scenarios exist, but in many ways, women dominate the process--both as caregivers and ones in need of care. This is likely the case because women live longer than men on average and cultural pressures still tend to encourage women to act as caregivers more than men.

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The New York Times reported this week on a settlement reached by New York City officials which may have implications for all local seniors who rely on New York Medicaid services to stay in their homes. The problem began when New York City officials agreed to pay $70 million to settle a claim alleging Medicaid fraud. The case stemmed from federal accusations that the city approved Medicaid expenses for in-home care when cheaper nursing home care was available. The federal government pays for half of Medicaid expenses and so federal officials can bring suit if they believe that cities or states are not following Medicaid rules resulting in payment increases.

While the settlement ends the specific legal matter, our New York Medicaid attorneys know that there may be other repercussions as a result of the agreement. Medicaid rules can be complex, and cities and states are loath to make costly violations of those rules. As a result of this latest settlement, many observers have noted that city officials are taking protective measures to ensure better compliance with those sometimes harsh rules. Those measures may involve cutting at-home services to seniors who currently rely on them to stay living on their own.

Specifically, advocates explain that the city has now told at least a hundred elderly residents that it will reduce and in some cases discontinue currently available 24-hour at-home services. Much of this assistance--like bathing and toileting--is the only thing that is keeping residents in their own homes and out of nursing homes. There is a real fear that cut-backs in this care will ultimately force residents out of their homes. Dozens of disabled advocacy groups voiced that very concern in a letter to federal officials this week. The plea stated that "denials or reduction of services are the default position of an agency fearful of sanctions and audits."

For their part city officials acknowledge that they are becoming more vigilant about violating Medicaid rules. However, those rules are most often set by state officials, and any complaints about the requirements should be directed at the statehouse. Speculation remains rampant about changes that state officials may make in the coming months to the Medicaid system. The policies that they set with relation to the program dictate who qualifies for care and what care they can receive. Local residents should be sure to pay close attention to these developments to better understand how it might apply in their own case. However, at the end of the day, local residents are always best served by taking their long-term care plans into their own hands. Our New York elder law attorneys know that the earlier families plan, the better. When at-home care is desired--and it almost always is--the only surefire way to make it available is visiting with professionals well before the actual care is needed and arranging financial affairs to ensure the resources will be there at the right time.

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The results of a new long-term care planning survey were announced this week that shed light on both the perceptions and planning of Americans. As reported in Financial Advisor, the data suggests that a growing number of residents are aware of the need to conduct long-term care planning, but a majority admit that they still fail to plan as properly as they should. Specifically, the study found that eight out of ten Americans believe that it is vital to prepare ahead of time for the assistance they might need as they age. Yet, nearly half those respondents claimed that in their own case they remain unsure how they will provide for their long-term care when they reach their golden years.

Long-term care costs are high and rising. New York elder care in particular has often been noted as one of the most expensive in the country. Many local residents seem to understand the high costs. Almost two-thirds of survey respondents in the Northwestern Mutual Life Insurance Company survey believe that long-term care costs will rise faster than their savings, and they expect costs to double in the next fourteen years. Yet, even though most community members acknowledge the cost issues, fewer than one out of three survey respondents were actually saving for their long-term care or had plans in place to ensure that they would have access to the resources they need to receive the care that they prefer. As one survey organizer summarized, "There is a clear disconnect between what Americans understand about long-term care needs and the steps they've taken to prepare."

With many local residents struggling to deal with their daily short-term issues, our New York elder law attorneys understand how long-term care planning can seem like a luxury more than a necessity. Yet, it remains unwise to treat these affairs as something that can be handled down the road. Preparing for these potential costs now often results in immense financial savings later. As the survey data reveals, this is particularly true for women. Women were 25% more likely than men to have acted as a caregiver for another. Women continue to live longer than men--five years longer on average according to the Center for Disease Control and Prevention. Unlike their male partners, there is less chance that they will have a spouse to care for them at home. Therefore woman have much to gain from ensuring that plans are in place so that they can maintain their lifestyle while retired. Yet only 24% of women are saving for their future needs as compared to 32% of men.

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On Wednesday Congressman Ted Deutch published an editorial in Politico advocating on behalf of a stalled federal initiative known as the Community Living Assistance Services and Supports Act (CLASS). The measure was hailed as the first federal attempt to address the nation's long-term care crisis. All those in our area who have dealt with the complexities and expense of finding proper New York elder care are likely familiar with this crisis. CLASS was part of the high-profile Affordable Care Act that passed Congress, but CLASS was recently suspended by the President.

The Representative explained that CLASS was essentially a means by which middle class families could have a voluntary and affordable long-term care insurance option. An important part of the CLASS program that needed to be addressed was the idea of "adverse selection"--the notion that insurance would only be bought by those who already needed the care. Of course, the maximum benefit is derived only when individuals have this insurance plan in place ahead of time. The measure is currently stalled specifically because of concerns about adverse selection. Yet, many, including Representative Deutch, believe that federal officials have statutory power to implement anti-adverse-selection measures.

CLASS was pushed by those who understand the looming problem facing the long-term care system. Only five percent of Americans have long-term care insurance, even though seventy to seventy five percent of all Americans will need some form of long-term care. The gap is often replaced by federal programs, like Medicaid. The Congressman explained that the reliance on Medicaid is unsustainable at the federal level. This is in addition to the fact that qualifying for Medicaid often requires residents to spend themselves into poverty, especially when planning is absent. Fixing the problem before it gets worse was the motivation behind CLASS. The measure hopes to steer residents away from the most expensive institutionalized care to more balanced programs that encourage cost-effective and resident-focused community care. Besides the cost savings, these programs are almost always preferred by seniors, because they allow them to live at home, maximizing their freedom.

Our New York elder care attorneys have frequently advised local residents on the benefit of this insurance. Long-term care insurance is simply the best method of ensuring two things: that assets are protected from these costs and that at-home care will be available if needed. As our attorneys have analogized, it is both a sword and a shield that residents can use to protect themselves down the road.

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For years the New York Medicaid attorneys at our firm have helped local families navigate the Medicaid program's complexities. We guide families as they sort through the application process, protect property through use of New York Medicaid Asset Protection Trusts, and engage in similar planning strategies. Millions of families throughout our state depend on the program to receive the care that they need to get by each day. However, the popularity of the service has also threatened its long-term stability. That is why many observers have been closely watching lawmakers as they propose various programmatic changes that may affect individuals currently using the program as well as those who will likely apply in the future.

Yet, for all the "doom and gloom" discussion that seems to perpetuate, the state has actually received praise for its ability to save money without drastically altering the services available to residents. The Ithaca Journal commented this week on a Kaiser Family Foundation report which found that the New York Medicaid system was outperforming other states in efforts to keep spending in check. The report found that nationwide Medicaid spending increased 28.4 percent this year. New York, however, actually spent slightly less money on these services. The state has been able to avoid the significant increase in spending, say some experts, because of their increased use of managed care. In addition, New York eliminated a separate prescription drug plan for Medicaid receipts; the plan was folded into the managed care service. Other states may follow our lead. The article explains that the state's "redesigning the program appears to be the leading edge of a national trend."

Not only has the redesign saved state money, it may also have improved the actual services provided to residents. For example, the state's spokesman for the Division of the Budget claims that the restructuring has led to a major expansion in patient-centered medical homes and better care management for those with complex medical needs. The state has also added substance abuse screening procedures, expanded smoking cessation counseling services, and now requires hospitals to provide patient-centered palliative care.

The program expansion coupled with spending cuts is even more impressive considering that program participation has swelled. Since the onset of the recession in late 2007, Medicaid participants have risen by a million, now totaling nearly five million. This increase was expected as economic troubles nationwide typically lead to an increased reliance on Medicaid services.

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