New York Elder Law Attorney Blog

Elder financial abuse is fast becoming a national crisis. That is the message that a New York geriatrician and social scientist is spreading after conducting extensive scientific investigations into the extent of fraud and financial exploitation among local seniors. The doctor is encouraging friends, family members, caregivers, New York elder law attorneys, and others to keep a close eye out for the signs that this abuse might be occurring among seniors that they know.

As reported in the Centre Daily Times, the doctor's latest work suggests that literally millions of seniors are victimized financially each and every year. Yet only a fraction of the instances of abuse ever come to the attention of authorities--only one in forty four, according to the report. In even fewer cases are the wrongdoers held accountable for their conduct. Previous work by this same team of researchers also found that those seniors who had been abused financially saw similar damaging effects on their physical well-being. The groundbreaking work revealed that mortality rates of elderly victims of financial abuse were significantly higher than for those who had not been abused. Suffice to say, this mistreatment has profound effects on the lives of victims and all efforts to limit the problem must be taken.

Yet, there is a long way to go before the mistreatment is stamped out. According to the latest research at least 2.5 million seniors are victims of financial abuse each and every year. Even then, that number may be a significant understatement. For one thing, it was reached mostly via self-reporting. Many seniors might hide their situation out of fear or embarrassment. Additionally, the research team noted that seniors who were suffering from a severe rate of mental decline were not polled in the survey. Yet it is that very group which is at the highest risk of being victimized by unscrupulous individuals willing to take advantage of them for personal financial gain.

Visiting a New York elder law attorney before a loved one with cognitive mental diseases, like Alzheimer's, loses the ability to communicate is essential. The professional will be able to provide an extra set of eyes on the senior's books which may help catch irregularities or signs of financial abuse. Beyond that, having an elder law estate plan put in place will help keep the senior's wishes fulfilled, even if they lose their mental capacities. Substitute decision-making documents will also be crafted to provide for the best interests of the elder as the disease progresses. These include creation of a Power of Attorney and Health Care Proxy. All of this will help avoid costly, timely, and stressful guardianship proceedings through the court system.

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The New York Times published a blog post last week on a new effort called the "Conversation Project" seeking to make long-term care planning a kitchen-table issue. The project, spearheaded by former journalist and Pulitzer Prize winner Ellen Goodman, is the first step in a comprehensive effort to ensure that long-term caregiving is considered when all local, state, and federal policy and financial decisions are made. Ms. Goodman became involved in the project while helping her 92-year old mother in her later years. Being 70 years old herself, the journalist became incredibly frustrated with the confusing nature of the senior caregiving process and the lack of advocacy for those involved. Ms. Goodman was actually on Medicaid for a few years at the same time as her mother, a situation that our New York Medicaid lawyers know is becoming more and more common.

Many details of the Conversation Project are still being developed. At this point Ms. Goodman is leading a webcast in late January, has an online forum, and has an article being published in the upcoming Harvard Business Review's "12 Audacious Ideas" issue. The Institute for Healthcare Improvement in Cambridge is also acting as an unofficial sponsor of the project in its early stages.

In discussing the project, Ms. Goodman explains that the beginning of the advocacy effort involves massive communication. She noted, "Everyone has a story. We need to share stories of the good deaths and bad deaths of people we loved." She explained that more community members must demand access and information to help them ensure their story is not one of pain and unhappiness. Of course, every New York elder law attorney at our firm is familiar with how prior preparation plays a huge role in the quality of life experienced by seniors in their later years.

The Conversation Project is hoping to combine with other efforts which are pursuing similar goals. For example, a former head of the AARP has launched the Coalition to Transform Advanced Care (C-TAC). C-TAC states its mission as one to empower long-term care consumers and deliver policy changes for the benefits of an aging population.

Many of the activists involved in these efforts are surprised that there has not been more community outrage based on the often inadequate care provided to many seniors. They argue that Medicare and Medicaid have not kept up with the changing dynamics of the elderly population. One advocate noted that these days seniors "live too long and die too slowly, at enormous financial and emotional cost to themselves and their families."

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New York City is renowned for its lack of sufficient senior living options. New York elder law attorneys know that competition is often intense for available spots in some of the better long-term care facilities. That competition will only grow more intense in the coming years as the number of available rooms drop and demand from the senior community increases. If more facilities aren't built, it will likely become even more difficult to access the highest quality elder living options, particular those that prioritize senior quality of life. As the chief executive of the International Council on Active Aging noted, "What used to work is no longer an option. We're moving from being a care society to one where we take self-responsibility."

Many more are growing aware of the looming housing crisis and are working to expand New York elder care options. For example, on Tuesday the Wall Street Journal reported on a new, ground-breaking nursing home that is set to be constructed on the city's Upper West Side. Those involved in the project explained that a 24-story Jewish Home Lifecare nursing home will be built at 97th Street between Amsterdam and Columbus. It will accommodate 288 total residents.

Those involved in the project explain that the new facility is intended to offer original designs and unique modes of staffing. It seeks to do away with the old-fashioned (and often despised) institutional approach with shared rooms and long corridors. Instead, the facility is being built to feel more like regular homes with private rooms clustered in small, 12-room pods. The staffing will also be different than the norm. Under the current plan the same two nursing assistance will be assigned to each apartment cluster. Those caregivers will go beyond tasks done in regular homes and instead also help with cooking, light housekeeping, and the facilitation of recreational activities.

This pioneering project has been in the works for years. Those involved have long wanted to build a facility with this new model, however it has been a challenge to marshal the appropriate resources to actually move ahead with the space-intensive design in the high-rise environment. However, things now appear to be in green-light mode. The $250 million project is set to break ground in February of 2013 with move-ins slated for the Spring of 2017. One New York elder law attorney explained that this project is clearly the area's most ambitious new senior housing development. He noted that is comes at a precipitous time considering the need for such spaces to accommodate aging Baby Boomers.

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Local seniors obtain peace of mind knowing that they will be able to receive late-in-life care in an ideal setting and that the care will be of top quality. These simple goals should not be out of reach for any elder community member. However each New York elder law attorney at our firm knows that many seniors will be forced to deal with less than adequate care, often in institutional settings where they would rather not live.

Part of the problem is that many local residents will not have visited with a New York elder law professional ahead of time to plan for this time in life. Staying in one's home while aging usually requires advance planning. However, it is not enough to merely have the aid of a home care worker--one must ensure that the worker is actually providing an appropriate level of care. A recent article from Aging Parents explained that there has been a shortage of quality home care workers. One of the problems, argues the author, is the fact that for a period these workers were exempt from minimum wage laws. When Congress passed minimum rights legislation, all home care workers were lumped into the category of exempt employees who acted as "companions." This was the case even for workers who engaged in a wide range of physical labor helping seniors bathe, dress, use the facilities, walk, get exercise, and eat properly. Of course, it seems intuitively unfair for these workers to be forced to live in dire poverty at incredibly low wages and no overtime pay.

Fortunately, the legal error was recently corrected. The author suggests that part of the reason the law took so long to change was that many of the individuals who fill these roles have few advocates, often including women and those who are not native English speakers. Also, as a result of the prolonged period of abysmal pay, advocates are worried that there is a shortage of well-trained, capable home health care workers. The need for these workers is expected to skyrocket in the coming decades.

The shortage of quality caregivers makes it important for local residents to conduct proper research when deciding on an appropriate home care provider for their loved one. A New York elder care plan that allows for home care is of little value if that home care worker is inadequate. Therefore, most advocates recommend going through a qualified agency to find these assistants. Most agencies are required to perform multi-state background checks, screen for drug use, and require references. The risk of abuse or theft is always much higher when home care workers are unsupervised and unaccountable.

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New Report Finds U.S. Communities Unprepared to Meet Needs of Aging Population

Each New York elder law attorney at our firm understands that maximizing the quality of life for local seniors requires both proper individual planning and common sense elder law policy proposals at the local, state, and federal levels. On the planning side, all local residents should visit with a New York elder care lawyer to prepare for disability, save taxes from Medicaid costs, and deal with similar issues. When it comes to policy, it is helpful to stay up to date with changes that are being proposed which may affect the lives of seniors. One of the key governmental bodies related to these issues is the U.S. Special Committee on Aging. This Senate committee has been at the center of all important federal elder law issues over the past half century.

Last week the National Academy of Elder Law Attorneys (NAELA) issued a special proclamation honoring the 50th Anniversary of the U.S. Special Committee on Aging. NAELA, a nationwide group of elder law attorneys, also co-sponsored an event in Washington D.C. honoring the committee's achievements.

The Special Committee was first created in 1961 as a central national clearinghouse to discuss and deliberate on a wide range of issues that affect senior citizens. Over the years the committee has been involved in any number of senior issues, from health care problems and elder financial exploitation to retirement security and nursing home abuse. In recent years the Special Committee on Aging has led the way in passage of the Elder Justice Act, Older Americans Act, and a wide range of issues seeking to improve the care at long-term skilled nursing facilities. Last year the committee brought national attention to senior housing issues during its hearing entitled "Continuing Care, Retirement Communities: Secure Retirement or Risky Investment?" In recent years the Committee served as the center of other important debates such as during the hearings "Exploitation of Seniors: America's Ailing Guardianship System" and "Sound Policy, Smart Solutions: Saving Money in Medicaid."

The overall mission of all those public officials on the committee and the advocates who testify before it is improving the quality of life for older Americans. The committee's mission has taken on even greater importance in recent years as a larger and larger percentage of Americans become seniors with the aging of the Baby Boomer generation. Many advocates have warned that housing options for seniors and access to appropriate healthcare will gain even more importance nationwide in the coming years. The U.S. Special Committee on Aging will undoubtedly play a central role in understanding those issues and figuring out possible policy solutions.

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This month the AARP's Public Policy Institute, in conjunction with the National Conference of State Legislatures, released a new report that is of direct applicability to all those concerned about their New York long-term care plans. Entitled, "Aging in Place: A State Survey of Livability Policies and Practices," the project is focused entirely on analyzing what states are doing (or not doing) to help seniors stay in their own homes as they age. As the report authors note, the vast majority of seniors prefer to age in place, but their ability to do so is in many ways dependent on how communities are designed and senior care programs implemented. Toward that end, the report took a look at land use policies, transportation services, and housing options across to country which are helping seniors meet their goal of avoiding the need to move.

When it comes to land use, the report found it crucial to integrate necessary services with transportation planning to reduce automobile travel. If older adults can more easily walk or otherwise reach necessary support services, they will be able to live in place longer. Also found to be helpful were requirements for implementing transit-oriented development within a half mile of transit stops and joint use of community facilities for senior centers and health clinics. Similarly, increased public transportation options are important to the efforts of many seniors to stay in place. "Complete street" policies are in place in some states requiring designs which allow travelers of all ages and abilities to navigate the street. The policy institute also suggested better coordination between human service transportation agencies. The coordination allows these agencies to do more with fewer resources.

When it comes to housing, many elder care plans are created specifically to help seniors have access to preferable living situations--usually outside of the nursing home. However, the AARP report found that there is a shortfall in affordable and accessible housing for seniors, making it difficult to avoid the institutional setting. To help, the authors suggested states make use of the federal Low-Income Housing Tax Credit programs to obtain more funds to increase the affordable housing supply. Similarly, developers should be encouraged to increase accessibility by altering building standards.

Our New York elder law attorneys know that our state has a long-way to go to help ensure all seniors can age in place. A comprehensive study last month (also from the AARP) actually ranked New York dead last in total percentage of at home care residents. In other words, more residents in our state as compared to elsewhere are forced to move out of their long-time homes and into alternative living arrangements to receive the day-to-day assistance they need.

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The Nieman Watchdog--Harvard's journalism faculty blog--recently published a commentary speaking to the looming "retirement crisis" and the problems with the federal government's current approach to dealing with it. The author notes that retirement planning is not what it used to be as many workers today are "facing a grim future in which the kind of retirement plans their parents were able to take for granted is out of reach." Our New York elder law attorneys have discussed these changing dynamics and the demand they place on thinking about long-term care plans in new ways.

The commentary notes that it is folly to presume that one will be taken care of in the future, because the growth of "defined contribution plans" (as opposed to "defined benefits plans") means that retirement savings often hinge on the performance of the markets. It is argued that this shift has made income from private pensions smaller and less reliable than in the past. That issue, coupled with rising health care costs, places a real strain on many retirement plans.

Considering those concerns, it is perhaps surprising that federal policymakers have spent most of their time discussing cuts to Social Security, Medicare, and Medicaid. The problem also exists at the state level, as New York Medicaid planners have been forced to watch as state policymakers consider a wide range of proposals to revamp the healthcare system that so many local seniors rely on for long-term care support.

Some suggest that the aging population combined with possible cuts to stalwart federal programs like Medicaid will ultimately send many more seniors into poverty. This is particularly true of those who have not conducted any elder care planning ahead of time. According to the latest figures from the U.S. Census Bureau, last month roughly 16% of all seniors were living in poverty. It is likely that the rate will rise significantly as seniors are forced to pay more for their health care to make up for possible program cuts. Right now seniors spend about 16% of their income in out-of-pocket health care costs. However, even under the current law, that rate is expected to increase to roughly 30% in the next few decades.

These frightening statistics are one of the reasons that researchers at the Center for Retirement Research at Boston College suggest that more than 50% of all baby boomers will not have economic security in retirement. The research identified "economic security" as income at 70% to 80% of their working wage.

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For decades those involved in elder care research have known that the vast majority of seniors would prefer to age in place at their own home instead of moving into a long-term care facility. Yet, our New York elder law attorneys know that for most of that time little was done to actually help seniors leave a nursing home or not enter it in the first place. Historically, only those who had conducted elder care planning well ahead of time (or were independently wealthy) had choices when they reached a point when they needed day-to-day living care.

Fortunately, times have changes. As an online article in last week's New York Times discussed, Medicaid rule changes now require senior and disabled care givers to be more proactive in helping these residents leave the facility if they are willing and able. In the past, most caregivers would ask residents if they wanted to move back to the community, but the law did not demand that they actually do anything to help the senior move. Now, if a resident mentions that they would like to move back home, the senior caregiver is obligated to connect the senior to an outside agency that will look into the feasibility of their moving back home.

The change reflects new national trends in long-term care. In the context of maximizing the quality of life for area seniors, this is a welcome development. The author notes that in the past "Medicaid, which pays for most long-term care, was spending way too much on care in the places nobody wanted to be--nursing homes--and very little on care in the places almost everyone preferred--their homes." The shift has been steady. In 1999, roughly 75% of Medicaid spending in this area went to institutional care. However, ten years later that spending level was down to 55%, with 45% going to home and community based services. The shift will likely accelerate even more as President Obama's "Money Follows the Person" program continues to take effect. It is helpful to note that this reallocation of resources still requires local residents to conduct New York Medicaid planning to shield assets from the going to pay for the program participation.

Along with the federal government, many more states are devoting Medicaid dollars to at-home care. Yet, New York seems to be lagging behind the pack. Along with Mississippi, New York is the only other state that has not seen any change in nursing home occupancy levels in the past six years. Some are concerned that part of the problem is the nursing home resistance to the proposal, because, as one advocate pointed out, "they make money keeping you in."

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Last Thursday a group of elder care advocates, seniors, and local politicians held an event to raise awareness of the possible closure of area senior centers. According to a report in Staten Island Live, the gathering was specifically called to ask Governor Cuomo to refrain from making changes to state Title XX funding. The proposed changes would essentially cut roughly $25 million from the budgets of senior centers citywide. Held on the steps of City Hall, state Senator Diane Savino led the event where more than 15,000 letters were unveiled written by seniors explaining how the cuts would affect their lives. Our New York elder law attorneys are aware of the ways that many local elders rely on various support services offered at these facilities.

The Title XX funding accounts for about a third of the total financial support provided to these centers. However, the funding is discretionary and some are proposing that it be moved over to support child welfare services. If the changes are made over a hundred senior centers will be forced to close. Lillian Barrios-Paoli, the Department for the Aging Commissioner repeatedly emphasized that the lives of thousands of seniors would be made qualitatively worse if these proposals were to advance. She explained that "this is an issue that shouldn't even be debated."

Others are questioning why such a proposal would even be brought forward in light of the changing demographics. As we have often reported, the elderly population is the quickest growing age group nationwide. The trends are no different in our area. Baby Boomers are now beginning to retire--a trend that will last for decades. The growing senior population means that New York elder care planning needs to be conducted now in anticipation of the needs of this population. Eliminating services to this group would seem to be a step in the wrong direction. Senator Savino commented on the pressing concerns already facing seniors by noting that "we have enough things to worry about. Take this off the table."

The director of public policy for the Council of Senior Centers and Services of New York City noted that these facilities have been relying on the Title XX funding for the past thirty five years. She said that eliminating the money would have serious effects on the already vulnerable elderly population. For example, right off the bat there would be two million fewer meals provided to the neediest seniors every year.

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According to the U.S. Census Bureau, the elderly now make up a larger share of the total population than at any other point since the government began tracking such data. The trend lines suggest that the demographic shift will only continue for the next several decades. According to the 2010 census, the "over 62" population grew by 21% in the previous decade. Conversely, the "under 18" population grew only 2.6%. Also, contrary to popular perception, the warm retirement meccas of the South and Southwest are actually not the most elderly dominated areas of the country. It is the Northeast with the largest shares of its population over sixty five. New York elder law attorneys know that the aging of our local communities will have many political, social, and legal implications.

The demographic shift is literally changing the feel of many area towns, cities, and villages. For example, the Star Advisor recently profiled Southbury, Connecticut--an aging town that is becoming a symbol of what many other locations in our area might soon become. Southbury is a seemingly picturesque suburb of about 20,000 residents. However, in a few years more than 40% of the town will be over the age of 65. Towns with that large of an elderly demographic have many different needs than other locations. For example, even though Southbury has only 20,000 citizens it already boasts a 4,000 resident Heritage Village senior living center, the Grace Meadows public housing complex for the elderly, three assisted living facilities, and two traditional nursing homes.

It is becoming increasingly clear that many parts of the country will soon require these extended networks of care choices for seniors. However, many observers have noted that we will likely face a shortage of senior living options--with more in need of certain assisted living choices than available beds and rooms. For local residents, the supply and demand disconnect will place increasing emphasis on having proper New York elder care planning in place to provide for one's long-term care well before they are actually needed. This planning is frequently the difference between living in one of the nicer senior facilities with amenities or being forced into a less-than-ideal nursing facility.

The residents of Southbury, even with their relative affluence, still suggest that financial concerns are pressing. One seventy year old resident remarked, "People complain about money and tax issues, and if you don't have enough for proper health care, eyeglasses, medicine, and all that, it's a problem." The elderly community members of Southbury also have a relative wealth of options, and even they have real living concerns. Residents continue to report that there is a shortage of affordable housing. For example, the town's eighty eight unit senior public housing complex has a waiting list between three to four years long with a hundred and fifty individuals waiting to get a spot in the facility. Those waiting lists are expected to grow in the coming years--increasing even more the value of having an elder care plan in place years ahead of time.

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Lower Hudson Valley News reported yesterday on a proposed move by a few counties to cut nursing home service within the next year. The plans to get the counties out of the nursing home business are being offered as a budget-saving effort. Administrators in Rockland, Orange, and Ulster counties have all proposed defunding county nursing homes, a move that may have serious effects on many New York long-term care plans. The county officials explain that the costs of the home are currently unsustainable, especially considering that state lawmakers recently imposed a two percent property tax levy cap. The tax cap makes it difficult for county officials to meet the rising obligations of these homes.

Our New York elder law attorney knows that these closings come at a difficult time, considering that the population in need of these services will only rise in the coming years. According to the U.S. Census Bureau the over-65 population is growing faster than the population as a whole. In addition, the over-90 population has tripled in the past few decades. These trends will undoubtedly continue, especially as medical advances prolong the lives of many community members. As a result, the need for assisted-living facilities is on the rise, meaning these county home closures may present complications for seniors living in these areas.

It is important to note that these facilities cannot be closed without state permission. All those currently in these nursing homes will need to be placed in new homes before the facility will receive that state permission. The seniors who live in the homes currently may have to move to facilities in distant cities--often away from friends and family members. In addition, the seniors may be forced to relocate into for-profit homes. These profit-driven nursing facilities have frequently been found to provide less than ideal care for residents, with increased rates of care deficiencies resulting in preventable harm to residents. It goes without saying that most elders would prefer to avoid living in locations where their quality of life may be diminished.

These concerns are leading some local policymakers to fight the effort to close the county nursing homes. For example, Harriet Cornell, the Rockland Legislature Chairwoman, said that closing these nursing homes "is the wrong thing for Rockford, given the demographics." She cited stats which reveal that 20% of the population will be over sixty years old in the coming decade. Ms. Cornell is spearheading the "Aging in Place" initiative which is looking into ways to help seniors stay in their own homes instead of moving into nursing facilities. Part of the initiative involves encouraging seniors to visit with New York elder law attorneys to plan ahead for these senior care issues.

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