Gerhard's Revised Book on Medicaid in PA

On January 22, 2007, I received from Attorney Robert C. Gerhard, III, of Glenside, PA, a courtesy copy of the 2007 edition of his book "Pennsylvania Medicaid & Long-Term Care", published in December, 2006, by George T. Bisel Co., Inc., of Philadelphia, PA. The book is described online here.

Previous editions of Bob's book were published in July, 2004, & November, 2005.

This is Bisel's description of the book:

Written by certified elder law specialist Robert C. Gerhard, III Esq. this reference book is a “must have” for anyone advising seniors and their families. This essential guide explains how Medicaid is used to finance long-term care in Pennsylvania. No other text discusses Pennsylvania’s Medicaid rules in such detail. Precise citations are provided to applicable cases, statutes, and regulations.

The [2007] Edition of Pennsylvania Medicaid, Long-Term Care contains significant revisions in light of recently enacted law. Pennsylvania Medicaid law has changed in major ways, thus rendering the First Edition out-of-date and replaced by the new [2007] Edition.

Bob is one of a few highly-qualified attorneys in Pennsylvania who have applied their specialized knowledge to the writing of a legal textbook about a practice area that changes frequently.

His new edition reveals the fast-paced changes in the federal Medicaid program, and in this Commonwealth's administration of it, which affect seniors' long-term care needs. In Pennsylvania, these include Act 42 of 2005, which eliminated the "Hurly appeal" as a way to increase the spousal share, and Department of Public Welfare's Operations Memoranda, which periodically apply legal & policy changes to the program in our state. To track such changes, Rob continues to update his book through Bisel's subscription services.

There are some other dedicated, practicing, Pennsylvania author-attorneys whose publications guide other professionals -- and some sophisticated consumers -- in this Commonwealth on important personal & fiduciary legal matters. I will highlight others periodically. In this posting, I compliment Bob for his scholarship in this important legal area.

AARP Training on Guardianship

The AARP National Legal Training Project (NLTP) is hosting an inter-active web training for legal services and advocacy staff on guardianship. The training will provide a basic overview of guardianship, including how to evaluate capacity, and will emphasize alternatives to guardianship.

NLTP's training programs are described here on its web page:

NLTP trains lawyers and other advocates throughout the country in substantive law and advocacy skills to enhance their free and reduced fee services to older Americans.

NLTP also conducts “Training of Trainers” programs to produce a cadre of elder law trainers who expand the reach of the program. The program’s funding sources include the US Administration on Aging, AARP and private contributions.

The current invitation by NLTP relates to web-training on "Guardianship Issues: What every elder advocate should know". For more information regarding the content, contact Imani Woody, NLTP Training Specialist at: iwoody@aarp.org.

These are the details about the program:

DATE: February 28, 2007
TIME: 2pm-4pm
PLACE: Your Computer
COST: Free of Charge
TRAINER: Carolyn Rodis, Esquire

AARP advises: "SPACE IS LIMITED TO THE FIRST FIFTY PEOPLE WHO REGISTER. E-MAIL SOON TO RESERVE YOUR SPACE."

To register contact the producer, Marie Hubbard (mhubbard@aarp.org). A confirmation e-mail will give directions on how to access the web meeting site and receive training materials.

Thanks to Ana Torres-Davis, Materials Attorney, AARP Foundation, National Legal Training Project (Ofc: 561-242-6012; Fax: 202- 434-2110), for posting this information last Friday on the listserv of the National Center on Elder Abuse.

I suggest that, if you cannot participate, you might still want to access NLTP's website here, to download relevant, related reference materials entitled "Protective Arrangements for Incapacitated Persons" (PDF, 112 pages, 605 KB), updated 08/24/2005.

These materials cover the following topics, according to its Table of Contents:

I. PROTECTIVE ARRANGEMENTS FOR INCAPACITATED PERSONS:
A. Representative Payees
B. State Elder Abuse Laws
C. Guardians and Conservators
D. Involuntary Civil Commitment

II. MODEL PROBLEMS:
A. Problems
B. Answers

III. BIBLIOGRAPHY

IV. APPENDICES
A. Initiation of Guardianship Proceedings
B. Notice in Guardianship Proceedings
C. Representation and Investigation in Guardianship Proceedings
D. Conduct and Findings of Guardianship Proceedings
E. Guardianship Monitoring
F. Transfer of Guardianship/Conservatorship Cases Between States
G. Elder Abuse Hotlines
H. Possible Indicators of Abuse: A Checklist

These materials appear to be a comprehensive, current reference, useful nationally, on the topic of guardianships.

Long-Term Care Study Award in PA

On January 10, 2007, Pennsylvania State University announced that the Pennsylvania Department of Public Welfare commissioned a research study to be conducted by a team located at Penn State Harrisburg on long-term care in the Commonwealth.

It will be funded by a $1.65 Million grant from DPW, "to develop and implement a plan to explore issues related to current and projected participation in long-term care services" in this state. See: Press Release, $1.65 million grant funds long-term care study (01/10/07).

Through a $1.65 million DPW grant, one of the largest ever awarded to Penn State Harrisburg and its Institute of State and Regional Affairs, the team of faculty and staff researchers will assess the current and projected future need for long-term care services in Pennsylvania and the associated cost of service delivery in the coming years.

Cynthia Mara, associate professor of health-care administration and policy, is the principal investigator for the effort, and Michael Behney, director of the Institute of State and Regional Affairs, is serving as project director. Jacob De Rooy, associate professor of managerial economics and statistics, is co-principal investigator with assistance coming from all the applied research centers in the institute.

The research, which will cover 18 months through June 2008, includes six objectives:

• Production of detailed state population projections by age, sex and race;
• Documentation of social, cultural and other factors in the long-term care environment that affect demand;
• Gauging of consumer choice factors relating to long-term care services;
• Identification of demand for and supply of long-term care services in Pennsylvania;
• Documentation of current and projected costs of long-term care services in Pennsylvania; and
• Development of a predictive model of consumer demand and cost of long-term care services in Pennsylvania.

The grant & study were the subject of a report, Aging population drives new study of long-term care, broadcast on WITF-FM (Harrisburg, PA) on January 19, 2007, for public radio affiliates in Pennsylvania:

* * *Cynthia Mara, an associate professor of health care administration and policy, says the issue is an important one in Pennsylvania, where the 85-plus population is rapidly growing. However, she notes age isn't the only factor to consider. The researchers will examine what types of care exists, as well as what areas are underserved. Mara says she expects the team's work to play a key role in decision making at the state level.

There is much attention lately to the growing need nationally for long-term personal care, seeking innovative solutions to meet such needs.

The current health care system favors institutional caretaking, according to a study recently referenced in an online article Bias in Long-Term Care Favors Nursing Homes, Government.

The National Bureau of Economic Research performed that study & also issued a report in 2006 entitled "Medicaid Crowd-Out of Private Long-Term Care Insurance Demand: Evidence from the Health and Retirement Survey" (NBER Working Paper No. 12526).

The report begins with a summary of its key findings:

This paper provides empirical evidence of Medicaid crowd out of demand for private long-term care insurance.

Using data on the near- and young-elderly in the Health and Retirement Survey, our central estimate suggests that a $10,000 decrease in the level of assets an individual can keep while qualifying for Medicaid would increase private long-term care insurance coverage by 1.1 percentage points.

These estimates imply that if every state in the country moved from their current Medicaid asset eligibility requirements to the most stringent Medicaid eligibility requirements allowed by federal law -- a change that would decrease average household assets protected by Medicaid by about $25,000 -- demand for private long-term care insurance would rise by 2.7 percentage points.

While this represents a 30 percent increase in insurance coverage relative to the baseline ownership rate of 9.1 percent, it also indicates that the vast majority of households would still find it unattractive to purchase private insurance.

We discuss reasons why, even with extremely stringent eligibility requirements, Medicaid may still exert a large crowd-out effect on demand for private insurance.

The long-term health care system forces the elderly into nursing homes -- the only long-term care option covered by Medicaid -- opines Dr. Ira Rosofsky, a psychologist who practices in nursing homes and who is working on a book about caring for the elderly.

In his opinion/editorial "Escape from the Nursing Home", published in the New York Times on January 17, 2007, he urges innovative thinking:

Seventy-five thousand dollars is the average yearly cost of living in a nursing home, whether you pay out of pocket, whether you have long-term-care insurance, or whether you’re on welfare and your stay is paid for by Medicaid. (In 2005, Medicaid paid an estimated $54 billion of the $122 billion national expenditure on nursing homes.) * * * But for long-term care, couldn’t we imagine a better way to spend that $75,000? * * *

[T]hree frail elderly people could share an apartment and a 24-hour aide and, by pooling the cost, have more than $58,000 left over among them for food, clothing, shelter, physical therapy and even fun and frolic.

Crisis entry of an elderly person into a nursing home that becomes residence long-term "grossly violates" the "accepted gold standard" that health care should provide services in the least restrictive manner, he says. "We are faced with a public health system that resists innovation, but the sheer size" of the baby-boom generation "may force the issue."

Such are the long-term care issues that the Penn State Harrisburg Study Team will be challenged to assess and explore.

PA Governor Unveils New Health Care Proposals

On January 17, 2007 -- one day after his re-inauguration for a second term as Governor of Pennsylvania -- Edward G. Rendell announced his administration's new program that would address the quality & cost of health care services in Pennsylvania, and would increase health care coverage to all its residents.

A Press Release (PDF, 4 pages), dated January 17, 2007, entitled Governor Rendell Unveils Historic “Prescription for Pennsylvania” to Provide Access to Affordable, Quality Health Care for All Pennsylvanians, announced the state government's initiative regarding health care coverage in the Commonwealth. It was posted on the site of the Governor's Office of Health Care Reform:

Building on his successful initiatives to expand access to health care including Cover All Kids and PACE/PACENET, Governor Edward G. Rendell today offered a sweeping and bold “Prescription for Pennsylvania” to increase access to affordable health care coverage for all Pennsylvanians by lowering costs, improve the quality of care available in the state and bring health care costs under control for employers and employees.

“We can no longer stand by while health care costs spiral out of control, leaving some 767,000 adult Pennsylvanians without the basic health care they need and creating a drag on our economy,” Governor Rendell said. “It is no longer a question of whether we can afford to act – the cost of inaction is far greater; both in terms of individual health consequences and from the increasing burden on taxpayers.

“Every year, Pennsylvania businesses, consumers and taxpayers pay at least $7.6 billion for unnecessary and avoidable health care costs. That is money that isn’t improving the quality of care we receive, nor making Pennsylvanians healthier. It doesn’t make sense. We should be redirecting that money to fix our broken health care system.”

The Press Release provided an outline of the proposal, but noted that its implementation would require state & federal action:

Specific components of Governor Rendell’s initiative will require legislative and federal approvals. If the necessary approvals are timely, the CAP program is expected to begin operating in January 2008. The financial aspects of the plan will be further detailed when Governor Rendell announces his budget plan for the 2007-08 state fiscal year in early February.

The Governor's Office followed the initial Press Release with another, dated January 18, 2007, entitled Governor Rendell's "Prescription for Pennsylvania" Will Enhance Access to Quality Health Care in a Variety of Settings. These are the advocated advantages of the proposed program, which the second Press Release addressed in more detail:

• Enable nurses, advanced nurse practitioners, midwives, physician assistants, pharmacists, dental hygienists and other licensed health care providers to practice to the fullest extent of their training and skills.
• Promote incentives for health care providers who offer services in the evenings and on weekends, which will help to discourage consumers from seeking emergency room treatment for routine medical concerns.
• Expand access to care by addressing urgent workforce needs in rural regions.
• Increase the diversity of the health care labor force in an effort to improve the provision of care to historically underserved communities.
• Expand access to care by creation of "Cover All Pennsylvanians" (CAP), a program offering affordable basic health coverage to small businesses and the uninsured through the private insurance market.
• Increase accountability of everyone in the health care system -- consumers, hospitals and other care providers.
• Improve patient safety by eliminating hospital-acquired infections and targeting avoidable medical errors.

Reactions were immediately posted online by various key "stakeholder" organizations involved in Pennsylvania health care, including:

• Pennsylvania Medical Society:
• Pennsylvania Medical Society Comments on Governor Rendell’s ‘Prescription for Pennsylvania’ Announcement -- A statement from Mark A. Piasio, MD, MBA, president of the Pennsylvania Medical Society, in response to Governor Rendell’s ‘Prescription for Pennsylvania’ announcement on January 17, 2007. Dr. Piasio is a practicing orthopedic surgeon from Dubois, Pa. (01/17/07).
  
• Governor Announces Health System Reform Plan -- Governor Rendell's “Prescription for Pennsylvania” looks to reduce health care costs and expand access to care to almost 1 million uninsured Pennsylvanians. (01/18/07).
  
• Hospital & Health Systems Association of Pennsylvania -- Rendell Health Plan Has Major Impact On Hospitals (01/17/07).
• SMC Business Councils --Statement of SMC Business Councils Regarding Governor Rendell's Prescription for Pennsylvania (01/17/07).
  

News reports about the announcement provided background, some public reactions, and questions:

• Rendell wants to put the care into Pennsylvanians' health -- Morning Call (Allentown, PA, 01/17/07) -- He says all businesses should offer insurance to workers, and he has a plan to make that happen.
• Rendell unveils sweeping health care plan -- Pittsburgh Post-Gazette (01/17/07).
• Rendell unveils sweeping health plan -- Philadelphia Inquirer (01/17/07).
• Rendell Unveils Prescription for Pennsylvania -- WNEP-TV (Ch. 16, Northeastern PA, 01/17/07).

Rendell's plan follows prior initiatives in the states of Massachusetts, California, Maine and Vermont, but it would go beyond universal insurance coverage, he says:

"I believe ours is the most comprehensive of any of the five states that have announced plans," Rendell said.

"It's a health plan that will benefit all Pennsylvanians, all Pennsylvania businesses, and all people who provide health care services."

On the same day as the Governor's announcement, January 17, 2007, an article was posted on Pennsylvania State University's website that highlights the national problems in healthcare. See: The Medical Minute: Medical care costs -- Are Americans getting their money's worth?, by John Messmer, of the Penn State Family and Community Medicine, Penn State Milton S. Hershey Medical Center, Penn State College of Medicine. Following are some excerpts:

Health care costs a lot in the United States -- somewhere around $6,000 for every person annually. That’s what Americans as a nation paid in 2004 for everyone’s medical care when it’s all added together -- a total of just under $2 trillion in government and non-government spending. * * *

What does all that money buy? About a third is for hospital-based services, and a fifth is for services provided by physicians and related health-care providers. Approximately one-tenth is for dental care, and another tenth buys pharmaceuticals. The remainder is divided among administration, home health, public health, investment and other costs. It’s about 16 percent of the gross national product.

Approximately 42 million Americans have no health insurance. The $2 trillion we spend includes the cost of care for these uninsured who enter the health-care system with advanced medical problems. About a third of the $2 trillion is paid by the federal government (Americans' tax money); a third by private insurance companies (premiums paid by employers or by employees); and of the remainder, state and local government and out-of-pocket payments comprise the largest shares.

Are Americans getting their money's worth? * * *

Pundits and politicians point to various "causes" of the problem. But the nation's health-care delivery is a complex system with so many things out of balance, just about every part must be addressed in order to fix it, and everyone involved will be required to sacrifice something.

---

“Government alone cannot –- and should not –- attempt to solve every problem facing our state’s health care system.” -- Governor Edward G. Rendell

---

Update: 01/24/07:

See Governor Rendell's two Press Releases, both issued January 24, 2007, regarding the Rx for Pa initiative:

• GOVERNOR RENDELL’S PRESCRIPTION FOR PENNSYLVANIA WILL TARGET HOSPITAL-ACQUIRED INFECTIONS, BOOST PATIENT SAFETY & REDUCE COSTS
• GOVERNOR RENDELL’S PRESCRIPTION FOR PENNSYLVANIA WILL IMPROVE ACCESS TO HEALTH CARE, ENHANCE QUALITY, CONTROL COSTS

2007 Heckerling Institute Summaries Available

The 41st Annual Heckerling Institute on Estate Planning, offered by the University of Miami School of Law, was held January 8-12, 2007, in Orlando, Florida.

The Heckerling Institute on Estate Planning is the nation’s leading conference for estate planning professionals. The program is designed for sophisticated attorneys, trust officers, accountants, insurance advisors, and wealth management professionals who are familiar with the principles of estate planning. The Institute offers something of interest to every member of the estate planning team.

Summaries of presentations made during past Institutes traditionally were posted online by the Real Property, Probate & Trust Law Section, of the American Bar Association. For past years, see these links:

• 2006
  
• 2005
  
• 2004
  
• 2003
  
• 2002
  
• 2001
  
• 2000

The summaries for the 2007 Institute are available. See: New Reports from the 2007 Heckerling Institute. The index for the various reports is found here.

These "reports from the event" were already provided contemporaneously to ABA-RPPT Section members on its Probate-Trust Listserv (ABA-PTL List), and also to ACTEC members on its listserv. Each report can also be accessed at any time from the ABA-PTL Discussion List's Web-based Archive.

These summaries are not the same as the detailed materials distributed to registered participants; but all the concepts discussed during the sessions are mentioned.

So, if you seek general acquaintance with recent developments or overall trends in estate planning, these summaries deliver both. And you could always obtain specific detailed materials from the Institute as you might need.

Spotting Financial Elder Abuse

I received an email message on January 16, 2007, from Dr. Bennett Blum about his offer for a free online resource regarding an "assessment tool" for spotting "undue influence" in relationships involving elderly persons.

What is "undue influence"? Wikipedia (a general reference, to be sure) introduces the concept here as follows:

In probate law, it is generally defined as a testator's loss of free agency regarding property disposition through contemporaneous psychological domination by an advisor which results in an excessive benefit to the advisor.

Dr. Blum, on his website, indicates the importance of this concept in situations of potential elder abuse:

Common concerns arising in elder financial abuse involve issues regarding: 1) the relationship between the elder and supposed perpetrator; and 2) biological factors that may impair the victim’s ability to know and understand what was happening.

If a relationship was manipulated in order to defraud or financially exploit the victim, it is important to determine whether the psychological and social elements of undue influence were present.

If there was no misuse of a relationship, then the financial abuse is usually considered to be a form of theft or consumer fraud – ex. identity theft, Internet scams, embezzlement, etc.

The goal of Dr. Blum, through his assessment tool, is "to provide practical, yet sophisticated, information that may be used immediately" to identify such "undue influence". He then described the free resource, offered on the website of CaseSoft, a producer of litigation software, as follows:

CaseSoft® - a division of LexisNexis® - is sponsoring a series of web-based seminars based upon my work. The series is entitled "Undue Influence & Elder Financial Abuse." These "webinars" are free and available to the public.

Chapter 1 of the series is an overview of the concept of undue influence, including some of the major subdivisions and associated behavioral models. References are given for those interested in more detailed study. (Available now).

Chapter 2 of the series contains an in-depth introduction to IDEAL - a behavior-based method of analyzing claims of undue influence. Sample cases and assessments are included. (Available February, 2007).

Chapter 3 will cover advanced issues in undue influence and IDEAL. Tips for investigation, case presentation, and cross-examination will also be included. (Release date to be announced).

To view the webinars, click here. You can view his website here.

There are many organizations that offer information online to educate citizens & professionals about "elder abuse" in general. Among the many resource sites available, these are excellent websites or web portals:

• American Psychological Association -- Elder Abuse & Neglect: In Search of Solutions
• Clearinghouse on Abuse and Neglect of the Elderly (CANE)
  
• Office for Victims of Crime (a component of the Office of Justice Programs, U.S. Department of Justice) -- Elder Abuse.
• Medline Plus -- A service of the U.S. National Library of Medicine and the National Institutes of Health -- Elder Abuse Resources.
  
• National Center on Elder Abuse (NCEA) -- Training Library for APS and Elder Abuse
• U.S. Administration on Aging -- Elder Rights & Resources
• National Committee for the Prevention of Elder Abuse -- Mental Capacity, Consent & Undue Influence

Pennsylvania does not have a statute mandating the reporting of suspected financial abuse of the elderly. California has much stricter laws. See: "When the Elderly Become Financial Targets", broadcast by National Public Radio, by Judy Campbell (May 31, 2005).

A 2005 enactment in California made those laws even stronger. See: California Welfare & Institutions Code ,Elder Abuse and Dependent Adult Civil Protection Act. The California Bankers Association now trains bank employees to spot elder abuse occurring with customers.

Is it time for stricter, confidential reporting in Pennsylvania by banks or other institutions to the Pennsylvania Department of Aging as to suspected financial elder abuse? I think so.

Update: 07/17/07:

AARP has compiled & posted in its online AARP Bulletin, a state-by-state listing of resources that address "elder abuse" situations. See: "State-by-State Elder Abuse Resource List", compiled by Christopher J. Gearon (July-August 2007).

These are the resources listed for Pennsylvania:

• Adult Protective Services: call the statewide elder abuse hotline toll-free at (800) 490-8505 or contact your Area Agency on Aging
• Long-Term Care Ombudsman: call (717) 783-8975; or contact your local ombudsman
• Attorney General: call the Attorney General's Elder Abuse Hotline toll-free at (866) 623-2137 (in state only)