July 24th Deadline for Assisted Living Regs

The Pennsylvania Assisted Living Consumer Alliance (PALCA) recently updated its website to explain recent developments in proposed assisted living licensure requirements for Pennsylvania, and to announce a July 24, 2009 deadline established by the Pennsylvania Department of Public Welfare, Office of Long-Term Living (DPW) to receive additional comments on proposed regulations.

The Pennsylvania Assisted Living Consumer Alliance (PALCA) is a collaboration of consumers, family members, and local and statewide organizations that have united to advocate for safety, freedom of choice and high legal standards for residents in assisted living facilities in the state. * * *

PALCA is advocating for the establishment of standards that define and regulate assisted living facilities – in particular those relating to questions of residents’ rights, staff qualifications, training and resident ration requirements, physical site design, fire and safety codes, aging in place considerations, consumer choice, control, autonomy and an enforcement system.

Additionally, at present, there are no national standards or consistent definition or regulation for assisted living, nor any clear best practice standards. * * *

Thirty-two organizations are listed on PALCA's web page entitled "Participating Organizations", including the Pennsylvania Bar Association's Elder Law Section. Assisted living facilities presently are governed by existing regulations regarding "Personal Care Homes".

Proposed regulations under a new law (Act 56 of 2007) have been carefully reviewed by PALCA, as explained on its web page entitled "Proposed Regulations."

I have noted PALCA's interest and input previously on this Blog. See: PA EE&F Law Blog posting "New PALCA for Assisted Living Standards" (07/22/08). For background about Act 56 of 2007, and the environment of its enactment, see: PA EE&F Law Blog postings, "PA's Act No. 56 on Assisted Living Facilities" (07/26/07), and "PA's "Assisted Living Facility" Bill (likely, Law)" (07/16/07).

Recently, PALCA issued an "Urgent Regulations Update" on its web page and in email to constituent organizations, urging further input by those interested no later than the July 24, 2009 deadline established by the DPW. I quote from its web page:

On June 24, the Office of Long Term Living released the interim draft Assisted Living Regulations to stakeholders and interested persons. This draft is available here: Document-12700.pdf. This is just an interim draft and the state is accepting comments on last changes to make prior to publishing their final draft in the months ahead.

We have reviewed it along side the proposed regulations. There are many good changes. These are listed here: Click here to download the PDF document (Interim Regulations Good list)

However, there are still some major outstanding issues that need to be resolved so that consumers can be well-served in Pennsylvania’s assisted living facilities. These are listed here: Click here to download the PDF document (Interim Regulations Bad list)

Comments may be submitted to the Office of Long Term Living via e-mail at: RA-asstdliving@state.pa.us This e-mail address is being protected from spambots. You need JavaScript enabled to view it

or via mail at:

Office of Long Term Living
Bureau of Policy and Strategic Planning
P.O. Box 2675
Harrisburg, PA 17105
Attention: Bill White

Comments must be submitted by close of business on Friday July 24, 2009. Additionally, the state is asking for comments to be submitted in a Microsoft Word document and prefers to receive them by e-mail.

We strongly encourage folks to submit their support for the good things that have been done and their opinion that more needs to be done to make these regulations good enough for the people we love.

The Interim Regulations include several significant improvements over the proposed regulations. This considerably improves the regulatory package and we are very pleased with these additions.

Those interested in making comments might be advised, also, to read a report, dated March 27, 2009 (updated on DPW's website on July 9, 2009), entitled "Adult Residential Licensing: 2008 Annual Report: A Report on Licensed Personal Care Homes" (PDF, 24 pages).

New "Quality Council" to Advise on Independent Living Services

On May 12, 2009, the Pennsylvania Department of Aging and the Pennsylvania Department of Public Welfare, through its Office of Long-Term Living, announced creation of a new advisory council to focus on "quality management of in-home and community services" provided in the Commonwealth.

The DoA's press release, entitled "Council Formed to Advise on Improving Services to Older Adults, People with Disabilities," briefly explained the need and the objectives:

The Pennsylvania Department of Aging and the Office of Long-Term Living today announced the formation of a 15-member Quality Council that will advise on new policies and procedures to ensure quality management of in-home and community services.

“Many older citizens and those with disabilities prefer to live independently and at home -- rather than in a nursing facility -- so we want to make sure that the services we provide are the best that can be offered,” said Secretary of Aging John Michael Hall.

“The new council brings together experts from across Pennsylvania to help us improve on our programs.”

The Office of Long-Term Living will receive the council’s recommendations, based on its surveys, research and reports, to help provide the highest quality of assistance to the thousands of consumers who receive services in their homes. These services include attendant care, transportation, home-delivered meals for older adults, home health and personal assistance services. * * *

The new council is a mix of state employees (six members appointed from the staff of DPW's Office of Long-Term Living) and Pennsylvania citizens (nine members).

The Press release did not identify the staff members, but did identify the public members, four of whom live in Philadelphia:

• Jack Armbruster, Erie
• Carl Bailey, Philadelphia
• Kimberly Byrd, Philadelphia
• Richard Kiel, Fayetteville
• Carol Marfisi, Philadelphia
• German Parodi, Philadelphia
• Kimberly Pirilla-Scalise, Belle Vernon
• Dorothy Robison, Lancaster
• Sue Ellen Stelevich, Kingston

Given the growing need both in rural communities and in western Pennsylvania, I wonder why there is no representative from a sparsely populated county, and no representative from Allegheny County, which have significant senior populations.

Regardless, the announcement of such a "Quality Council" monitor to provide input about independent living regulations on an advisory basis to State Government is a step forward.

As the Commonwealth's population ages (creating demand), as federal funding diminishes (reducing nursing home services), and as new technologies evolve (supporting or monitoring services provided at home or in personal care homes), "quality control" should remain a primary concern.

Real Estate Tax: Reassessments Needed More Often

On April 29, 2009, the Pennsylvania Supreme Court unanimously held, in a Majority Opinion written by Chief Justice Castille in Clifton, et al. v. Allegheny County, Nos. 20 & 21 WAP 2007 (PDF, 53 pages), that "the base year method of property valuation, as applied in Allegheny County [PA], violates the Uniformity Clause. We therefore agree that a countywide reassessment is required."

A Concurring Opinion was filed by Justice Baer.

The Majority Opinion framed the issue on its first page:

The present appeals call for us to consider the constitutionality of Pennsylvania’s property assessment laws.1

Presently, the assessment laws of the Commonwealth neither require nor do they prohibit periodic property reassessments, and thus they permit real estate taxes to be levied on property values that are based upon a stagnant “base year market value” for an indefinite period of time. Allegheny County has adopted such a base year system.

In a thorough opinion and order, the Court of Common Pleas of Allegheny County, per the Honorable R. Stanton Wettick, Jr., found that, because a base year assessment method that does not require periodic reassessments inherently causes significant disparities in the ratio of assessed value to fair market value, the Commonwealth’s property assessment laws were facially unconstitutional as they violate the Uniformity Clause of the Pennsylvania Constitution, A.CONST. art. VIII, § 1, which requires equality of taxation. * * *

[Footnote 1: When referring generally to “assessment laws,” we are referring to the General County Assessment Law, 72 P.S. §§ 5020-1 to -602, the First Class County Assessment Law, 72 P.S. §§ 5341.1-5341.21, the Second Class County Assessment Law, 72 P.S. §§ 5452.1-5452.20, the Second Class A and Third Class County Assessment Law, 72 P.S. §§ 5342-5350k, and the Fourth to Eighth Class County Assessment Law, 72 P.S. §§ 5453.101-5453.107]

The Pennsylvania Supreme Court agreed with the trial court as to the unconstitutionality of an indefinitely-applied base year concept as proven in Allegheny County, but did not require, as did the trial judge, annual market reassessments of real estate for taxation purposes, instead leaving the crafting of a constitutionally-acceptable, countywide real estate tax assessment mechanism to the legislature.

[T]he Allegheny County scheme, which permits a single base-year assessment to be used indefinitely, has resulted in significant disparities in the ratio of assessed value to current actual value in Allegheny County.

The disparity is most often to the disadvantage of owners of properties in lower-value neighborhoods where property values often appreciate at a lower rate than in higher-value neighborhoods, if they appreciate at all. * * *

In beginning its examination of Pennsylvania's real estate tax assessment system, the Court reached all the way back to "ancient Egypt, Babylon, and Persia", through medieval England, and up to colonial America.

The Court examined the post-1982 real estate assessment system in Pennsylvania, when "the assessment laws governing the different counties were amended so as to allow counties to utilize either a current market value method or to adopt a base year market value method in arriving at the assessed value of each property in the county."

The ruling was reported on April 30, 2009, in an article entitled "Court orders county reassessment -- Justices say taxation system is 'broken'" by Karamagi Rujumba, published by the Pittsburgh Post-Gazette.

The court cited examples of what has happened to property taxes in the Woodland Hills School District since the county implemented its base-year system. Between 2002 and 2005, for example, the court showed that property values in Braddock declined by 16 percent while they went up by 35 percent in Edgewood.

Justice Max Bear wrote a concurring opinion as the court returned the case back to Common Pleas Court where it asked "the trial court to determine Allegheny County's progress in executing a county wide reassessment and to set a realistic time frame for its completion."

As a result, the justices wrote, "Allegheny County is currently left with a broken system of property taxation." * * *

"We find no ineluctable constitutional deficiency with the use of a base year system: it is only through the passage of time that a base year assessment will become stale, and thus unconstitutional," said the court.

The article noted that, "[s]o far, this ruling has no effect on any other county that has a base-year assessment system.

The Supreme Court nudged the Commonwealth's General Assembly for real estate tax reassessment reform:

It is not our charge to determine what may be the best system of assessment. Nor is this Court capable of fixing a point in time at which a base year automatically becomes unconstitutionally non-uniform.

As the trial court noted, the General Assembly is the appropriate place in the first instance to fashion a more comprehensive and soundly constitutional scheme. To that end, the trial court has provided a useful survey of the property assessment methods of our sister states, which shows that twenty-two of our sister states require annual reassessments, while twenty-six permit reassessments to be conducted at intervals over one year, though they still require periodic reassessment.

Pennsylvania is the only state where legislation allows the use of a base year indefinitely. * * *

The Court then issued its ruling:

Ultimately, our task is decisional, and Allegheny County is currently left with a broken system of property taxation.

In its effort to fashion a remedy, the trial court directed the Chief Assessment Officer of Allegheny County to conduct a reassessment no later than March 31, 2009, for use in the 2010 tax year, even if this Court had not yet issued a final order.

We agree that reassessment is required. However, recognizing that the passage of time may require adjustment by the trial court, we will remand this matter to the trial court to determine Allegheny County’s progress in executing a countywide reassessment and to set a realistic timeframe for its completion.

This case should nudge the Legislature to amend the assessment laws for reasonable, periodic countywide reassessments of property values used for real estate taxation.

"Meals on Wheels" Feeding Seniors

At Thanksgiving, we should recognize and support the many local "Meals on Wheels" programs nationwide. Congress recently ignored one opportunity to do so in proposed income tax legislation.

The MoW concept began in England in 1947, and first took root in this country in Philadelphia in 1954. Today, such programs are stressed by fluctuating costs for gas and food, and by a changing workforce of volunteers who labor as a community service largely at their own expense.

Wikipedia provides a generic description of such programs:

Meals on Wheels are programmes that deliver meals to individuals at home who are unable to purchase or prepare their own meals. The name is often used generically to refer to home-delivered meals programmes, not all of which are actually named "Meals on Wheels."

Because they are housebound, many of the recipients are the elderly; not surprisingly, most of the volunteers are also elderly but able-bodied. * * *

Today, Meals on Wheels programmes generally operate at the county level or smaller. Programmes vary widely in their size, service provided, organisation and funding. * * *

The Meals On Wheels Association of America (MOWAA) is a national association for senior nutrition programmes, but each programme is entirely independent. * * *

For a listing of Meals on Wheels programs in Pennsylvania see: Pennsylvania Meals-on-Wheels and Senior Meal Programs, provided online by MealCall.

At this holiday time, many publications run articles celebrating the essential benefits and identifying the needy beneficiaries of local MoW programs.

These are some articles that appeared about Meals on Wheels services in just the last three days:

• "Warm hearts, meals nourish county" (11/26/08), by Tom Koenninger, posted by The Columbian (Clark Co., Washington)
  

• "Meals on Wheels delivers for recipients, volunteers" (11/26/08), by Matt Gerish, posted by The Delaware News

• "LJ Meals on Wheels serves up more than healthy eats" (11/25/08), by Maria Connor, posted by The La Jolla Light (La Jolla, California)

• "Meals on Wheels Thanksgiving feast brings the 'family' together" (11/25/08), by Jennifer Feals, posted by Sea Coast Online (New Hampshire)

• "Thanksgiving Meals on Wheels" (11/24/08), posted by WKOW-TV (Madison, Wisconsin)

Recently, such community-oriented, cost-efficient feeding programs have been threatened by the price of gasoline, and also by a scarcity of volunteers. The two problems are interrelated.

When gas prices spiked in summer, 2008, the effects on such transportation-dependent services were predictable on those organization that supplied vehicles for deliveries -- the increases hit their budgets immediately. But most local services rely upon volunteer drivers, who use their own vehicles and buy their own fuel. So volunteer drivers were affected too, immediately.

In "Meals on Wheels feels pinch by higher gas, food prices" (05/25/08), by Garry Lenton, posted by The Patriot-News (Harrisburg, PA), it was reported that "[b]ecause of the increasing cost of gas, some nationwide Meals on Wheels groups report losing volunteers." See also: "Meals on Wheels running on fumes: Inflated food costs, recent legislation have program that provides meals for seniors living month to month" (11/23/08) by Brittony Lund, posted by The Lufkin Daily News (Texas)

There is a connection between gas prices and volunteers beyond the personal expenditures. There is also an income tax deduction problem, which was highlighted by the Pennsylvania Association of Nonprofit Associations (PANO), a "statewide membership organization serving and advancing the charitable nonprofit sector through leadership, advocacy, education and services in order to improve the quality of life in Pennsylvania."

In its posting about the IRS Charitable Mileage Rate, PANO urged Congress to "Raise the Charitable Mileage Rate" since it has remained unadjusted for the past ten years:

Volunteers who use their own cars for charitable service can only deduct 14 cents per mile from their Federal income taxes.

The IRS standard business mileage rate just increased [on July 1, 2008, to 58.5 cents per mile, to reflect rising fuel costs], but the charitable rate has not increased in ten years.

High gas prices are hurting charities, volunteers and those who rely these services. Programs like Meals-on-Wheels are facing critical volunteer shortages throughout the country.

H.R.2020 would raise the charitable mileage rate from the current 14 cents per mile to the business rate (currently 58.5 cents) and eliminate the disincentive for charitable volunteerism. * * *

In a note on its webpage dated October 8, 2008, PANO summarized its attempts in Congress, through two of Pennsylvania's elected federal officials, to change the charitable mileage rate:

Over the past 8 months, PANO spearheaded the nationwide effort to raise the rate that volunteers who use their own vehicles for charitable service, can deduct from their personal income taxes. * * *

Many Americans can no longer afford to volunteer due to high gas prices. Volunteers need relief.

The Charitable Mileage Deduction Equity Act, S.3421 by Senator Bob Casey (D-PA) and H.R.2020 by Congressman Todd Platts (R-19-PA) would set the volunteer mileage rate at the business mileage rate. The two rates would be the same: 58.5 cents per mile adjusted by the IRS when necessary. * * *

Unfortunately, other Congressional legislative priorities overwhelmed consideration of those proposed bills. But PANO's efforts laid groundwork for further consideration in the next session of Congress, as described on its website:

The sudden financial crisis on Wall Street, and the $700 billion bailout wiped the volunteer mileage rate and many other worthy bills off the table from consideration in Congress.

In the end, Congress failed to vote on the Charitable Mileage Deduction Equity Act, the GIVE Act, the revised GIVE Act, or any other form of comprehensive legislation to address the unfair treatment of America’s volunteers. * * *

While we are disappointed that the Congress failed to pass legislation raising the volunteer mileage rate, our efforts [had] significant results. In just 6 short months we brought national attention to this issue, raised its profile in Congress and set the stage for future action.

[The] National Council of Nonprofit Associations (NCNA) described it as follows:

“A state association saw this national volunteer crisis brewing and got others involved in the struggle to fix it. Initial leadership on this issue by the Pennsylvania Association of Nonprofit Associations (PANO) persuaded our national organization – the National Council of Nonprofit Associations – to become deeply involved, which in turn led to 40 state associations and hundreds of other nonprofits across America – from AARP and the American Red Cross to Independent Sector and United Way of America – joining forces, all in less than six weeks.

The state association network rallied quickly to support PANO and NCNA, not only speaking out officially by signing onto a joint endorsement letter, but also by rallying hundreds of our members across the nation to join that endorsement letter.”

Our work helped thousands of nonprofits across the country find their voice, and demonstrated the value of our national network of State Associations. * * *

Most recently, on November 24, 2008, the Internal Revenue Service issued Revenue Procedure 2008-72, which will appear in Internal Revenue Bulletin 2008-50 dated Dec. 15, 2008. It updated "annual optional standard mileage rates for employees, self-employed individuals, or other taxpayers to use in computing the deductible costs of operating an automobile for business, charitable, medical, or moving expense purposes."

In its Section 2, that Rev Proc listed the most recent standard mileage rates:

• Business -- 55 cents per mile
• Charitable contribution -- 14 cents per mile
• Medical and moving -- 24 cents per mile
  

Further explanation was provided as to the "Determination of standard mileage rates" as follows:

The business and medical and moving standard mileage rates reflected in this revenue procedure are based on an annual study of the fixed and variable costs of operating an automobile conducted on behalf of the Service by an independent contractor.

The charitable contribution standard mileage rate is provided in § 170(i) of the Internal Revenue Code. [Emphasis added]

With the retreat of gas prices to half the level charged just a few months ago, the urgency for Congressional action on such remedial tax legislation may have abated for awhile, but the long-term dual issues of fairness to, and motivation for, volunteers who serve, remain.

Slump's Serious Repercussions for Seniors

On October 1, 2008, the Urban Institute issued a Press Release entitled "How Is the Economic Turmoil Affecting Older Americans?" announcing a "Fact Sheet" of the same name prepared by Richard W. Johnson, Mauricio Soto, & Sheila R. Zedlewski.

In the "Fact Sheet: How Is the Economic Turmoil Affecting Older Americans?"(PDF, 12 pages), the authors examined the impact of recent economic woes on seniors, as summarized in the Report's Introduction:

The slumping stock market, falling housing prices, and weakening economy have serious repercussions for the 94 million Americans age 50 and older who are approaching retirement or already retired.

Retirement accounts lost about 18 percent of their value over the past 12 months, and between January 2007 and May 2008, housing prices fell from 4 to 20 percent depending on where seniors live.

Older Americans have little time to recoup the values of their homes, 401(k) plans, and individual retirement accounts — all important parts of their retirement nest eggs. More and more older Americans are working to bolster their retirement incomes, but the rising unemployment rate, now 6.1 percent, limits their prospects.

This fact sheet examines the impact of the ongoing economic turmoil on retirement savings, home values, and retirement decisions. * * *

The Fact Sheet noted the serious repercussions of the steep decline in stock market values that occurred during the past year, which accelerated during the past month, because most retirements accounts contain many stocks, now far lower in value:

The stock market lost 27 percent of its value between September 30, 2007 and September 30, 2008, a roughly $7 trillion drop.

The loss has reduced the retirement savings of many Americans, particularly older adults. * * *

• Forty-nine percent of households ages 50 and older own retirement accounts. Seventy-nine percent of these accounts include stock holdings.
• The typical retirement account of households ages 50 and older invests 50 percent of its assets in stocks. However, households ages 70 and older hold much less in stocks, reducing their exposure to market fluctuations. * * *
  

The authors considered aspects of the decline in investments that supported seniors' retirement plans, with statistics:

• How Much Have Retirement Accounts Fallen?
• How Are Different Age Groups Affected?
• How Much Do Households Hold in a Typical Retirement Account?

Then the authors considered how the simultaneous decline in home prices will affect seniors' retirement plans, by addressing these questions:

• Does home equity represent a large share of older adults’ wealth?
• How has housing wealth changed for older adults?
• What is the importance of home equity in retirement?
• Are reverse annuity mortgages a good way to shore up retirement incomes?

Finally, the authors turned to employment of older workers as a means of shoring up retirement plans:

The plummeting value of retirement assets –– housing, pensions, and other savings –– could force more older adults to delay retirement and remain at work and could encourage some retirees to return to work.

At the same time, contracting credit markets could weaken the labor market, limiting employment opportunities for older adults. * * *

These are their specific questions about employment:

• How will the financial crisis affect retirement decisions?
• How will the credit crunch affect jobs?
• Are older workers likely to lose their jobs?
• Will older adults find new jobs?
• How does unemployment at older ages affect retirement income security?

The Urban Institute's conclusions are reflected in personal stories reported recently by various publications, including:

• "Baby Boomers Scramble to Reassess Future: What to do when your retirement disappears before your eyes" (10/20/08), by Mark Huffman posted by Consumer Affairs.

• "Savings Hit Hard by Economic Meltdown, Elderly Wait and Worry" (10/16/08) by Rebecca Spence posted on The Jewish Daily Forward.
  

• "Seniors Hit Hard by Financial Crisis: Collapsing home prices, tight credit, dwindling investment income a lethal brew" (09/21/08) by James R. Hood posted by Consumer Affairs.

AARP, based in Philadelphia, PA, also has posted excellent articles about seniors facing an economic downturn.

• "A Matter of Life and Debt" (Oct. 2007) by Carole Fleck October 2007 posted in the AARP Bulletin Today

• "Bear Market Makes Boomers Wary as Retirement Draws Near" (07/15/08) by Gail Marks Jarvis, reposted from The Baltimore Sun
  

• "Top Questions Members Are Asking AARP About the Current Financial Crisis" (10/20/08) by Carole Fleck posted in the AARP Bulletin Today

Probably the best article that I've read on the subject appeared in The New York Times on September 22, 2008, entitled "Retirees Filling the Front Line in Market Fears" by John Leland & Louis Uchitelle, who note that "Older Americans with investments are among the hardest hit by the turmoil in the financial markets and have the least opportunity to recover."

This is pretty depressing news. It must be met with personal tenacity and a will to survive.

“Tenacity is a pretty fair substitute for bravery,
and the best form of tenacity I know
is expressed in a Danish fur trapper's principle,
'The next mile is the only one a person really has to make.'”

-- Eric Sevareid (American Journalist, 1912-1992)

CMS Empowers "Personal Assistant Services" in Medicaid

On September 29, 2008, the Centers for Medicare & Medicaid Services issued a Press Release entitled "CMS Issues Final Rule to Empower Medicaid Beneficiaries to Direct Personal Assistance Services."

The final rule, published on October 3, 2008, provides guidance to states that want to administer self-directed personal assistance services through individual State Plans, as described in the Press Release:

A final rule that would allow more Medicaid beneficiaries to be in charge of their own personal assistance services, including personal care services, instead of having those services directed by an agency, was announced today by the Centers for Medicare & Medicaid Services (CMS).

The rule, on display today [09/29/08] at the Federal Register, guides states who wish to allow Medicaid beneficiaries who need help with the activities of daily living to hire, direct, train or fire their own personal care workers. Beneficiaries could even hire qualified family members who may already be familiar with the individual’s needs to perform personal assistance (not medical) services. * * *

The referenced final rule was published in the Federal Register on October 3, 2008 (Vol. 73, No. 193, pp. 57853-57886). See: Medicaid Program; Self-Directed Personal Assistance Services Program State Plan Option (Cash and Counseling); Final Rule.

The press release quoted Kerry Weems, CMS acting administrator: “As health care is not simply an economic transaction, this plan represents a fundamental shift that restores a person’s ability to improve their overall health by taking greater control of his or her own decisions.”

The Press Release announced the possibilities for "self-directed personal assistance services" funded by Medicaid if a state would opt to join that program for its qualifying recipients:

If a state adopts a self-directed personal assistance services state plan option, beneficiaries could receive a cash allowance to hire their own workers to help with such activities as bathing, preparing meals, household chores and other related services that help a person to live independently. Allotments could also be used to purchase items that help foster independence such as a wheelchair ramp or microwave oven. The beneficiaries also have the option to have their cash benefit allotment managed for them.

The rule would put into place a provision of the Deficit Reduction Act of 2005 that allows states to elect a state plan option to provide care in ways that previously required waivers of existing Medicaid laws. Such waivers are subject to certain budgetary requirements and are temporary in nature. * * *

What would be required from a state opting into this program?

Before a state could request this change to its state plan, it must have an existing personal care services benefit, or be operating a home or community-based services waiver program.

Enrollment in this new state plan option is voluntary and the state must also provide traditional agency-delivered services if the beneficiary wishes to discontinue self-directed care.

States choosing this option must have necessary quality assurances and other safeguards in place to assure the health and welfare of participants. States must also furnish sufficient information, training, counseling and assistance to participants in order to help them effectively manage their budgets and their personal assistance services. * * *

Will Pennsylvania opt in? That will be up to the Pennsylvania Department of Public Welfare in its State Plan submission to CMS. DPW has been receptive to development of such innovative, cost-saving programs in the past few years. See: Workshop Presentation, Medicaid Rehab Option (2005, 68 slides).

The CMS rule on self-directed personal assistance services will become effective on November 3, 2008.

"Brain Fitness" for Seniors

On September 8, 2008, a Press Release entitled "Seniors Housing Communities Embrace Brain Fitness Centers" announced that the American Seniors Housing Association, in conjunction with SharpBrains, issued a briefing that "describes the use of computerized brain fitness tools being offered to senior housing residents as part of comprehensive wellness initiatives."

"Brain Fitness" is described by Wikipedia as a new movement in science:

Brain fitness grew out of the study of neuropsychology and is the science of maintaining and training cognitive abilities. Its training principles are based on concepts derived from phenomena contributing to neuroplasticity and neurogenesis.

Cognitive abilities like attention, memory, visual/spatial processing, auditory processes and language, motor coordination, and executive functions like planning and problem solving diminish over time unless they are used regularly.

A major hypothesis is that improvement in cognitive abilities through brain exercise represents brain fitness, in an analogy with how physical exercise produces physical fitness. * * * Brain fitness typically seeks to improve attention, memory, thinking, and stress management.

The study of "brain fitness" quickly resulted in devices and programs intended to improve brain functioning, particularly for seniors anticipating or experiencing decline.

Jack LaLanne, the American fitness, exercise & nutritional expert, soon to be 94, is a proponent of brain exercise along with physical exercise, to maintain well-being, according to a Washington Times article, "Brain fitness on LaLanne's mind" (07/09/08), by Karen Goldberg Goff:

"Dying is easy," Mr. LaLanne says in a phone interview from his California office. "Living is an athletic event. Inactivity is a killer. A little exercise pays off such great dividends." * * *

His latest venture is as a spokesman for [m]Power, a cognitive exercise media system. The system, which is being used in more than 100 senior living centers and is available for home use, uses video and sound clips, trivia games and brain teasers to give senior citizens' brains a workout. * * *

Dan Michel, chief executive of Dakim, the company that manufactures the device, says a mental workout -- like the physical workout Mr. LaLanne has been promoting all these years -- can improve cognitive functioning and ward off signs of dementia.

"Scientists now believe that the brain is plastic until the end," he says. "As aging occurs, we lose neurons or synapses over time. If we are constantly learning new things, we create new neurons and create a cognitive reserve. Our system works on long-term memory, short-term memory, language, spatial relations and critical thinking. It constantly self-adjusts the level of difficulty to stretch the mind." * * *

Brain Fitness is now a movement, particularly among senior citizens, soon to be joined by aging "baby boomers."

The trend was highlighted in a New York Times article entitled "As Minds Age, What's Next? Brain Calisthenics" (12/27/06) by Pam Belluck. She reported that "across the country, brain health programs are springing up, offering the possibility of a cognitive fountain of youth. See also: "Beating forgetfulness and boosting the brain" (07/25/07) by Kristen Gerencher, posted by MarketWatch; and "Calisthenics for the Older Mind, on the Home Computer" (08/26/07) by Christine Larsen, also posted by The New York Times, which considered the skepticism of some research scientists.

Still, new high-technology products & programs now fill these "brain gyms." Nintendo, the world's biggest maker of portable game players, sold 21.5 million copies of its Brain Age and Brain Age 2 games in the past two years, according to "Dementia-Dreading Baby Boomers Spur Race to Invent Brain Games" (04/04/08) by Rob Waters, posted by Bloomberg.

He reported about such a "brain gym" that challenges senior citizens:

The software was created by closely held Posit Science Corp. in San Francisco.

It is one of about 20 companies, including Nintendo Co., pitching brain games to the elderly and baby boomers to delay or blunt the onset of dementia.

The market will surge to $2 billion by 2015 from $225 million last year, says Alvaro Fernandez, co-founder of SharpBrains, a San Francisco consulting company. * * *

Brain-training programs for the elderly "will become as common as bingo,'' says SharpBrains' Fernandez, 35, whose company promotes science-based cognitive training. "Over 400 senior residential facilities have brain-fitness centers today.'' * * *

See also: 'Brain fitness' Market for aids to stall 'senior moments' booms with aging boomers (06/20/08), by Megan K. Scott, of Associated Press, who also quoted Mr. Fernandez.

The recent Press Release offered new evidence about this movement, but in the setting of senior housing centers:

This is the very first publication in the field of brain fitness to address specific considerations related to seniors housing, expanding on our general Market Report released earlier this year.

It is very conceivable that the early and enthusiastic adoption of cognitive fitness, supported by the solid measurement of outcomes reported in the Brief, will help to transform the way in which the general population perceives seniors housing. * * *

I wondered about the specifics of the report mentioned in the Press Release, so I sent Mr. Fernandez an email message. He replied quickly:

The target audience for the special report is execs at seniors housing communities, not consumers.

Consumers can find many free resources in our website, more relevant to them than the content of the special report.

Have you seen this series of interviews with scientists and this Program Evaluation Checklist or this overview article on brain health trends? * * *

Although skepticism remains as to the long-term effectiveness of current brain training tools, I am impressed by the growth of this recent movement towards "brain fitness" -- a phenomena suggested by science that quickly materialized into marketed products, now being placed into communal housing for seniors.

Comments Due on PA's Assisted Living Regs

On September 7, 2008, The Philadelphia Inquirer published a commentary, entitled "Proposed assisted-living rules fall woefully short" by Alissa Halperin, Esq., of the Pennsylvania Health Law Project, regarding pending regulatory rules proposed by the Pennsylvania Department of Public Welfare to govern future operations of assisted-living facilities in this state.

She concluded: "The proposed regulations do represent a step in the right direction. But they must be beefed up to include stronger consumer protections. * * * Thankfully, the draft regulations are still in a formative stage and the public has an opportunity to give its input now."

Her comments echo many points made in a Press Release, issued in August, 2008 by the Pennsylvania Assisted Living Consumer Alliance entitled "New Assisted Living Regulations Do Little to Protect Consumers," which "asks the public to make their voices heard on fundamental rights."

For background on the issuance of the proposed regulations under Act 56 of 2007, see PA EE&F Law Blog postings "PA "Assisted Living Residence" Regs Proposed" (07/31/08) and "PA's Act No. 56 on Assisted Living Facilities" (07/26/07). See also: "Long-Term Care in PA: Assisted Living Update" (11/12/07), posted by AARP.

Alissa Halperin, Esq. as Project Director of PALCA and as Senior Attorney & Deputy Director of Policy Advocacy at the PHLP, also created a PowerPoint presentation entitled "The Evolution of Assisted Living in Pennsylvania" that provides background and makes points about the proposed regulations. See also: "The Status of Assisted Living in Pennsylvania" (07/07; PDF, 11 pages) PowerPoint, by Dana Breslin, Esq. and Alissa Halperin, Esq., prepared for the Pennsylvania Bar Institute's Elder Law Institute.

Such differences in opinion as to the effectiveness of the proposed regulations was the subject of an article posted on September 6, 2008, by KYW News Radio (Philadelphia, PA) entitled "Pa.'s Assisted Living Facilities Will Get New Regulations" by Pat Loeb, who reported:

The Pennsylvania Department of Public Welfare is developing new requirements and regulations for assisted living facilities in the state. The new regulations are meant to protect residents, but consumer advocates think the regulations don't go far enough.

It's been eight years since World War II veteran William Neff died of abuse at an assisted living facility in Bucks County -- igniting an outcry for new regulations. But until now, assisted living has been licensed the same way as personal care homes.

Alissa Halperin of the Pa assisted living consumer alliance says the problem with the new regulations is they don't represent enough of a change. * * *

Spokesperson Stacy Witalec says the Department of Public Welfare is open to suggestions from Halperin and others: “We are hoping through the regulation process we can all come to the table to make sure these regulations meet the very unique needs of every resident we're hoping to serve.” * * *

Written comments about the proposed assisted living regulations can be delivered to the Department of Public Welfare, Division of Long Term Care Client Services, Attention: Gail Weidman, P. O. Box 2675, Harrisburg, PA 17105. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).

The proposed regulations were released by DPW on August 9, 2008. Due to an extension, DPW will receive public comments until September 15, 2008.

Update: 09/11/08:

On September 10, 2008, PALCA submitted comments on the proposed assisted living regulations to the Department of Public Welfare and the Independent Regulatory Review Commission.

Update: 09/16/08:

PALCA's comments were noted in an article, "Proposed Assisted Living Regulations Would Allow Facilities to Rent Inaccessible Rooms to Persons Who Use Wheelchairs or Walkers" (09/15/08) posted by MarketWatch, which noted that the "[c]onsumer coalition calls for quality standards to protect Pennsylvania families from inadequate regulations."

The article also noted:

Accessibility is just one weakness in the draft regulations identified by PALCA. Other areas of concern include ensuring adequate staff and administrator training, access to one's own doctor, a responsive appeals' process and sufficient residents' rights.

The House Aging and Older Adult Services Committee will hear consumers' stories on Thursday, Sept. 18 at 9:30 a.m. in room 418 in the Main Capitol Building in Harrisburg.

"Long-Term Living in PA" Website

On September 4, 2008, the Pennsylvania Office of Long-term Living "launched an updated Web site to better serve Pennsylvanians who are seeking information and resources about long term living services."

Announcement of the new website occurred in a Press Release (09/04/08) issued by the Pennsylvania Department of Aging, entitled "Pennsylvania Launches New Web Site Offering Resources To Help Meet Long Term Living Needs", which noted the revamped website named Long-Term Living in PA.

The Press Release quoted representatives of the PDA:

• "Planning to meet long term living needs -- whether for ourselves or for a loved one -- is one of the most important tasks we face, and one that can be challenging. This new Web site provides valuable information to make it easier to plan for the future," said Secretary of Aging Nora Dowd Eisenhower.
  

• "Whether you are a consumer, family member, caregiver, attendant or provider, you will have easy access to information about services and local resources on this site," said OLTL Deputy Secretary Mike Hall.
  

Sections and subsections of the new website, reachable through its broad navigational bar, address various aspects of long-term living. According to my brief review, the website:

• Provides background on long-term living
• Explains personal "needs assessment" and explores the continuum of care --- occasional to minimal to significant to maximum, whether in the home, in the community, in a residence, or in an institution
• Explains home-oriented and community-based services, including programs of the PDA
• Explores planning for long-term care -- why, when, what, who, & how, with tools
• Notes the need to help others, including caregivers, and to remain alert for elder abuse
• Identifies providers of caregiving services, and their required credentials & reports
  
• Reviews fraud and abuse potentials
• Lists consumer rights & responsibilities
• Considers payment sources, including Medicare, Medicaid, veterans' benefits, private payment, and long-term care insurance
• Lists other online resources (federal, state, helpline, & organizational)
• Updates "special initiatives" underway in PA state government
  

This new website with a separate Internet address already appears to supplement, and may eventually overshadow, the existing treatment available on the PDA's website, namely, Long-Term Care in Pennsylvania.

The new website demonstrates the commitment of the Commonwealth's Executive Branch to provide reliable information, specific to this state, about long-term care needs, options, and resources.

A Pennsylvanian should review Long-Term Living in PA first, when investigating this subject online.

Update: 09/08/08:

The Los Angeles Times published a brief "bookmark" on September 8, 2008, entitled "Plan for long-term care," which cited the national informational website on this topic:

Few people like to think about the prospect of living in a nursing home, but you're in for a financial shock if you don't plan for the possibility.

Americans typically need three years of long-term care during their lifetime, according to the National Clearinghouse for Long-Term Care Information, and it doesn't come cheap. * * *

New Online Senior Housing Locator

On July 21, 2008, the National Association of Area Agencies on Aging (n4a) introduced a new "online navigational tool to help older adults search for senior housing, no matter where they live." The resource was described in n4a's Press Release, entitled "National Association of Area Agencies on Aging rolls out nationwide senior housing resource during annual meeting in Nashville."

Powered by SNAPforSeniors®, the Senior Housing Locator makes objective, nationwide information available 24-hours a day, seven days a week through the convenience of the Internet.

Consumers and professionals alike will now have access to the n4a Senior Housing Locator through a link on n4a.org.

The tool allows users to search a database of more than 60,000 senior housing listings, including all licensed senior housing in the nation.

Member Area Agencies on Aging (AAAs) and Title VI Native American Aging Programs will be invited to add a link to the tool or use a version co-branded for their own website.* * *

The Press Release explained how the Senior Housing Locator is similar to the existing Real Estate Multi-Listing Service maintained by Realtors®, but is targeted towards the specific needs of senior citizens as residents, and Aging Agencies as facilitators searching for appropriate facilities.

It is a free service "developed by SNAPforSeniors, representing another example of cooperative relationships among the aging network and private sector organizations." It is devoid of advertising, however, which suggests a more trustworthy service.

The Senior Housing Locator is similar to the real estate industry’s Multiple Listing Service, and functions much like a traditional search engine.

Users can search a database of assisted living communities, nursing homes, residential care facilities, continuing care retirement communities and a growing list of independent living communities, all at the click of a mouse.

Many listings provide information about care services, lifestyle amenities, payment options and more, with some including photo galleries and virtual tours. * * *

Eve Stern, RN, MS, president of SNAPforSeniors, [said] * * * “[T]he fact that all licensed communities are included eliminates the bias that referral services and advertising-based listing services exhibit.”

The varieties of licenced housing available to senior citizens in the various states make searching confusing, and the new search resource attempts to sort out the facility types:

There are 247 different senior housing license types in the United States. According to SNAPforSeniors, the inconsistency from state-to-state is a common source of confusion when it comes to finding housing in another area.

To help remedy this, the n4a Senior Housing Locator provides definitions for all 247 license types. Medicare certified facility listings also include a link directly to that facility’s quality report on Nursing Home Compare.* * *

About a week later, the new senior housing online search resource was promoted in a Press Release entitled "Society of Certified Senior Advisors introduces comprehensive online resource to clients in need of senior housing" (07/29/08) issued by the Society of Certified Senior Advisors®, of Denver, CO, the world’s largest membership organization educating and certifying professionals who serve seniors.

Its immediate involvement is an example of the "co-branding" offered and sought by n4a.

Through the Alliance Network Program, SNAPforSeniors licenses and private-labels its database and search tools to the websites of leading trusted sources, including the Alzheimer's Association and the Case Management Society of America. * * *

For more information about SNAPforSeniors, read its "Frequently Asked Questions" online. It is listed in Google's online "Senior Living Directories and Helps" that offers additional online resources.

LTCI Scrutinized by Feds

On July 24, 2008, the U.S. House Committee on Energy and Commerce held the second in a series of hearings on the subject "Long-Term Care Insurance: Are Consumers Protected for the Long Term?"

The hearing was preceded by issuance on July 23rd of a Press Release, entitled "Senate, House Members Release Results of GAO Report on Long-Term Care Insurance."

The referenced report issued by the U.S. Government Accountability Office (GAO), entitled "Long-Term Care Insurance: Oversight of Rate Setting and Claims Settlement Practices" (June, 2008; GAO No. 08-712; PDF, 41 pages), surveyed "the consumer protections states have in place for those who purchase long-term care insurance (LTCI)."

The Press Release noted the purpose of the GAO's Report:

Due to the rapid aging of America’s population, the marketplace for long-term care services is expected to expand significantly. Private LTCI has emerged as one possible way individuals can prepare for their long-term care needs later in life.

In their request to GAO, members of Congress expressed their interest in examining the frequency with which consumers are experiencing denial of benefits and exorbitant rate increases.

In light of such practices, the GAO report examined the robustness of states’ rate setting standards and the rules for settling of benefit denials. * * *

These were the essential findings of the GAO's Report on LTCI:

GAO found that rate increases for LTCI policies fluctuate widely from state to state and plan to plan. For example, one company cited in the report repeatedly raised premiums, resulting in a cumulative increase of more than 70 percent since 1991, while another company has raised premiums only once since 1975.

According to the report, rate stability standards, which are designed to protect consumers against sharp premium increases, have now been adopted by more than half of all states.

However, because many states have not yet adopted these standards, a vast number of consumers are still left unprotected. Additionally, because the rate standards are so new, state regulators are unsure of how successful they will be in moderating future premium increases.

GAO also reviewed claims settled by LTCI companies in ten states by evaluating consumer complaints. The report found that standards for the timely payment of consumer claims varied significantly by state, with “timely” being defined as five days in one state and 45 days in another. One state did not have a timeliness requirement at all.

GAO also noted that some states are considering implementing an external appeals process for adjudicating disputed claims. * * *

In prior blog entries, I noted the increased promotion by the federal and many state governments, including Pennsylvania, of private long-term care insurance. See: PA EE&F Law Blog postings "PA Joins "Own Your Future" LTCI Campaign" (03/28/08), and "PA to Promote Long-Term Care Insurance" (03/12/08). I expressed concerns about adequate state regulatory review and remedies for policy purchasers & claimants of LTCI coverage.

The GAO's Report acknowledges such concerns, notes varying enforcement measures presently, and recommends further scrutiny of LTCI issuers and policies, given the increasing federal and state government promotion of such private coverage:

The federal government expects that as many as 30 states will have Long-Term Care Partnership programs in place by the end of this year. These programs encourage the private purchase of LTCI and feature state-approved plans that combine private LTCI with possible add-on Medicaid coverage in policies that allow consumers to protect some portion of their accumulated financial assets.

Many state officials, as well as LTCI providers, are enthusiastically supporting rollout of these Partnership programs. As programs of this nature unfold across the country, the GAO report’s findings make it clear that consumers who are urged by state governments to purchase these plans must have access to comprehensive, accurate information about Partnership-approved plans to determine whether they are a sound and affordable choice for them. * * *

Those witnesses who offered testimony at the recent House subcommittee hearing regarding LTCI included two from Pennsylvania. Each witness provided a prepared statement or presentation, available online, as follows:

Panel I:

• Statement of Ms. Bonnie Burns (PDF, 18 pages), Training and Policy Specialist, California Health Advocates, of Scotts Valley, CA

• Power Point Slide Presentation and Statement of Marc A. Cohen, Ph.D. (PDF, 12 pages), President, LifePlans, Inc., of Waltham, MA

• Statement of Mr. Al Bode (PDF, 17 pages), retired teacher & son of a parent in long-term care, of Charles City, IA

• Statement of Mr. Jack E. Vogelsong (PDF, 14 pages), Chief, Division of Long Term Living, Outreach and Education, Pennsylvania Department of Aging, of Harrisburg, PA

• Statement of Mr. John E. Dicken (PDF, 23 pages), Director, Health Care, U.S. Government Accountability Office, of Washington, D.C.

Panel II:

• Statement of The Honorable Sean Dilweg (PDF, 28 pages), Commissioner of Insurance, State of Wisconsin, of Madison, WI

• Statement of The Honorable Eric Dinallo (PDF, 15 pages), Superintendent, New York State Insurance Department, of New York, NY

• Statement of The Honorable Kevin M. McCarty (PDF, 18 pages), Commissioner of Insurance, State of Florida, of Tallahassee, FL

• Statement of The Honorable Mike Kreidler (PDF, 9 pages), Commissioner, Office of the Insurance Commissioner, State of Washington, of Olympia, WA

Panel III:

• Statement of Mr. Thomas M. “Buck” Stinson (PDF, 13 pages), President, Genworth Long Term Care, of Richmond, VA

• Statement of Mr. John Wells (PDF, 11 pages), Senior Vice President, Long Term Care, Conseco, Inc., of Chicago, IL

• Statement of Mr. Thomas E. Samoluk (PDF, 19 pages), Vice President & Counsel, Government Affairs, John Hancock Insurance Co., of Boston, MA

• Statement of Mr. Cameron B. Waite (PDF, 10 pages), Executive Vice President, Strategic Operations, Penn Treaty Network America, of Allentown, PA

You can watch the hearing on your computer using Windows Media Player and a high-speed Internet connection.

Seven elected senators or representatives had requested such a Report from the GAO and urged hearings about LTCI. Some were quoted in the Press Release as expressing deep concern about LTCI after reviewing the GAO's Report.

Such investigations are not ended. At the conclusion of the GAO's Report, the principal author, John E. Dicken Director, Health Care, made an offer for further input about it.

If you or your staffs have any questions about this report, please contact me at (202) 512-7114 or dickenj@gao.gov.

Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix II.

That is an invitation for participation in this envisioning process.