Saturday, April 30, 2011

Pennsylvania's Adult Protective Services Law becomes effective - or does it?

Act 70 of 2010, the Pennsylvania Adult Protective Services Act (35 P.S. §§ 10210.101), became effective on April 7, 2011. This Act creates a protective services program for adults ages 18 to 59 who have cognitive or physical disabilities and lack the capacity to protect themselves and who are at imminent risk of abuse, neglect, exploitation or abandonment.

This new Adult Protective Services system fills a gap between Pennsylvania's existing protective service systems for children and the one for older adults over age 60. Act 70 unifies a patchwork of services that previously existed for adults between the ages of 18 and 59 and reaches those adults with limited protections because they reside with families or non-regulated caregivers.  It is intended to establish a statewide reporting and investigative system that will allow for a uniform way of reporting suspected abuse. 

The law establishes procedures for filing complaints of abuse, neglect, and exploitation and for investigations of complaints and the development of service plans to remove the adult from imminent harm and provide for long-term needs. The Act requires employees and administrators of facilities where adults covered under the act receive services to report suspected abuse.

The Department of Public Welfare (DPW) is the agency charged with responsibility for the program. However, under Section 7.01 (B) of the Act, DPW is not required to contract with agencies to provide adult protective services until final regulations are published in the Pennsylvania Bulletin and funding is appropriated by the General Assembly. 

Although 6 months have passed since the law's enactment, no proposed regulations have been published by DPW. This could be due to the disorder that typically accompanies a change in administrations. (Pennsylvania's new Governor was sworn this past January. And the nominee for Secretary of DPW has not yet been approved). But, given the current Budget environment in Harrisburg, funding is likely the more serious impediment to implementation. 

There is some potential for funding to eventually become available through the Federal Government. The Elder Justice Act was enacted as part of the Patient Protection and Affordable Care Act (the new Federal Health Reform law). The Elder Justice Act includes potential funding to states for their adult protective services programs. (The funding under Section 2042(b) of the Act does not appear to be limited to programs for the elderly.) President Obama has included a request $16.5 million in funding as part of his 2012 Budget. However, there is serious doubt that this request will survive the budget fever currently sweeping the national political system. 

As a result, at least for now, Pennsylvania's new Adult Protective Services system, while effective on paper, appears to be far away from realization.



Thursday, April 28, 2011

Professionals who work with Seniors to meet May 5 and 6 in Williamsport and Wilkes-Barre

The Marshall, Parker & Associates 15th Annual Professional Update will be held next week (May 5 and 6, 2011) in Williamsport and Wilkes-Barre. Each year hundreds of elder network professional get together at these Updates to network and hear the most current information on issues of importance to their senior clients and their professional practices. 

It’s not too late to register and attend one of this year's update sessions.  To register visit the  Professional Update page of the Marshall, Parker & Associates website or call 1-800-401-4552. 

Many professionals can obtain continuing education credits by attending. 

Here are the details of the conference.


Dates:
Thursday, May 5, 2011 at the Williamsport Genetti
Friday, May 6, 2011 at Mohegan Sun at Pocono Downs
7:30 AM – 12:00 PM



This free, half-day conference provides local professionals with information about the changes affecting their consumers and an opportunity to network with hundreds of their colleagues. It has become the region’s most widely anticipated professional event of the year.

7:30 AM - 8:00 AM
Breakfast, Registration and Exhibits

8:00 AM – 8:10AM
Welcome Address
Attorney Tammy A. Weber, Marshall, Parker & Associates, LLC

8:10 AM – 9:00 AM
The Elder Law Update
Attorney Matthew J. Parker, Marshall, Parker & Associates, LLC
(May 5, 2011)
Attorney Kevin R. Grebas, Marshall, Parker & Associates, LLC
(May 6, 2011)

9:00 AM – 9:20 AM
Break

9:20 AM – 10:15 AM
Sibling Wars and Parent Care:
Fostering Effective Communication, Cooperation, and, even...Healing
Francine Russo, Nationally- Recognized Journalist and Author, New York, NY

10:15 AM – 10:35 AM
Break

10:35 AM – 11:10 AM
The Marcellus Shale Opportunity: A Game Changer
John Felmy, Chief Economist, American Petroleum Institute, Washington D.C.

11:10 AM – 12:00 PM
The Changing Landscape of our Local Healthcare
Brian E. Campbell, Chief Financial Officer, Commonwealth Medical College, Scranton, PA

Tuesday, April 19, 2011

How siblings can work together to care for their aging parents and themselves

Are you caring for an aging parent? If so, you have entered what author Francine Russo calls the twilight transition. “The twilight is not only a matter of solving practical problems and meeting practical needs. It is an existential crisis through which we will be transformed from the children of our parents to the elders of our family.” 

The aging, decline, and ultimate death of our parent is typically a time of family crisis, guilt, frustration, and caregiver exhaustion. But it can also be a time of communication and growth and healing in our relationships with our parents, our siblings, and ourselves. 

According to Ms. Russo, during the twilight transition  

our parent’s role will grow smaller, and ours will grow larger. We will not only care for them but also make decisions for them, bury them, and mourn them. We will inherit their property, their values, traditions, and history. . . .

These years of our parent’s decline are the final phase of the family in which we grew up. They are the transition to a new day, a new epoch in which we and our siblings will be the oldest generation of our family. In this transition, one, if not both, of our parents are here, yet not here, at least not the way they were. Our roles and those of our sisters and brothers need to change, but change comes hard. It’s all too easy for our emotions to be blown out of proportion. At moments, past and present can blend in disorienting ways. It’s scary. The end of our old family as we knew it is near; what the next generation will bring is unknown. . .

Not everyone will be able to make these leaps. But if we succeed, the payoff is profound. We emerge with a deeper, richer sense of self and of human life. We can accept the loss of our parents as part of the natural cycle of life and move forward with our own lives. And we are likelier to advance with an enduring and sustaining connection to our sisters and brothers in the next generation.

The above excerpts are from a wonderful book that can help families who are struggling through this difficult transition. They're Your Parents, Too!: How Siblings Can Survive Their Parents' Aging Without Driving Each Other Crazy, is “a psychological and practical roadmap through this life-changing family transition.” It is based on years of research and discussion with geriatric care managers, psychologists, academics and elder law attorneys. But most importantly, Francine Russo interviewed dozens of adult children, mostly in their 50s and 60s, who were struggling to cope with the problems of caring for their aging parent. 



They're Your Parents, Too! is full of insights that should help any family though this difficult time: how we can connect as a family, get the support we need, keep our emotions in proportion, cope with dementia, deal with inheritance issues, and limit the hurt and guilt that are so often present. 

Francine Russo is a long-time acquaintance of mine. I think I can call her my friend. We have talked by phone and corresponded by email for the best part of the last ten years.  She does me the honor of quoting me in her book. But I have never had the chance to meet my distant friend in person.  Until now.  On May 5th Francine spoke at the Marshall, Parker and Associates 15th Annual Professional Update in Williamsport.  You can see a 7 minute excerpt from her presentation by clicking on this link
or you can paste the following URL into your browser: http://www.paelderlaw.com/2011_Prof_Update_Videos.htm.
They're Your Parents, Too! has been widely hailed as a groundbreaking examination of one of the most complex but ignored times of human transition. And it is so readable that it is hard to put down. 

Francine has been interviewed on the Oprah Winfrey show and Diane Sawyer on ABC’s World News Tonight.  Her book has been the subject of numerous articles The New York Times, The Wall Street Journal, Time Magazine, U.S. News and World Report, and many other newspapers and news-magazines.

For More Information on Francine Russo's 
They're Your Parents, Too!
Amazon Books Customer Reviews (They are all 5 Star!)
New York Times Article "Oh Brother Where Art Thou"
"They're Your Parents, Too" website




Friday, April 15, 2011

Advance directives: Living Wills, Health Care Powers of Attorney, and Pink Cards.

Imagine that you have been injured in an accident and are unable to make important medical decisions for yourself. Who should make those decisions for you? How will the Doctor and Hospital know who is authorized to speak on your behalf? The law allows you to name your spokesperson, but most people have never made that vital choice. 

April 16th is National Healthcare Decisions Day, so it is a particularly appropriate time to be talking about who will decide for us. And perhaps we can even move forward enough to document our wishes in a legally binding manner. 

When people think of planning in advance for health care decisions they usually think of living wills. But is a living will the best legal planning tool for you? There are other options for you to consider. 

Living Wills are Limited

 "Living will" laws were an early legislative attempt to devise a method by which incapacitated individuals could exercise their qualified legal right to refuse unwanted treatment.

With a living will, an individual provides treatment instructions regarding the types of medical treatment and care he or she wants to either receive or refuse at the end of life. This document is typically used by people to describe the point at which they would no longer desire certain types of life-prolonging medical treatment, but it may also document an individual's desire for continuation of treatment. These documents and the related law are very much misunderstood even by the physicians and other health-care providers who are responsible for their implementation. The way decisions are made in real life and the legal rules are often in conflict.

Living wills were the first and remain the best-known and most widely used form of advance health care directive. Unfortunately, many consumers and their advisors fail to appreciate the significant limitations of the living will. Living wills are operative only after your attending physician has declared that you are in an end-stage medical condition or permanently unconscious. But many people who are not competent to make health decisions are not in an end-state medical condition or permanently unconscious. A living will is neither operative nor relevant with regard to questions about day-to-day care, placement, or treatment options, and the many other health decisions that need to be made for non-end of life patients who lack capacity.

The limitations of the living will go beyond its narrow applicability.  The living will begins with a contradictory premise - that you are prescient enough to be able to provide truly informed consent about unknown treatment alternatives in unknown circumstances at an unknown future time. It is informed consent based on lack of information. The inadequacy of living wills and to some extent of advance directives in general, has been described by The President's Council on Bioethics:

"Advance instruction directives (or living wills), though valuable to some degree and in some circumstances, are a limited and flawed instrument for addressing most of the decisions caregivers must make for those entrusted to their care.

Living wills, although much talked about and recommended by many people, are not a panacea. They address, at most, but a small fraction of the decisions caregivers must make for incapacitated persons. Even if everyone executed a living will, and even if the instructions were followed as written, the big questions of long-term care and ethical decision-making would not disappear or become readily manageable: there are too many situations in which following orders is not the best way to give care, and giving care always requires more in terms of resources, character, support, and judgment than any legal instrument can possibly provide. We firmly believe that the American people-both potential patients and potential caregivers-should not be misled or encouraged to think otherwise. Moreover, in addition to the practical difficulties with living wills that we exposed in Chapter 2, the duties of actual-as opposed to imagined-human caregiving always arise within concrete situations experienced in the present, not conjured situations imagined in the past. Precisely because the obligation of caregivers here and now is always to the patient before them here and now, instructions written long in advance can rarely be simply authoritative or dispositive.

To be sure, a few of the difficulties with living wills could be ameliorated by improved and more prudent drafting: for example, every writer of a living will should be asked to consider writing into such a document-after, of course, discussing it with the relevant parties-a provision acknowledging that the wishes expressed in the document are based on incomplete information and explicitly authorizing family members and clinicians to override the specific instructions if they judged it would serve the patient's present welfare to do so. Also, rather than write blanket exclusions of specific kinds of potential treatment interventions, advance instructions might explicitly allow for temporary trials of certain treatments, permitting the patient's caregivers to see if the treatments might actually be beneficial without creating a situation in which the treatment cannot be easily stopped. But even such improvements do not address the fundamental limitations and shortcomings of advance instruction directives, which can never replace prudent judgment by devoted caregivers about what a patient now needs. Ethics committees, drafters of professional guidelines, policymakers, and legislators at both the state and federal levels should address these failings and search for more practical and responsible alternatives." Taking Care: Ethical Caregiving in Our Aging Society, The President's Council on Bioethics, (2005), pp 214-215 (emphasis in original).

Health Care Power of Attorney: A better planning tool for most people

As a result of the limitations of the living will, most experts now recommend that you move beyond giving instructions and name a person who will be authorized to make health care decisions for you in the event of your incapacity.  As noted by the President's Council on Bioethics:

"Advance proxy directives are much more valuable [than living wills] and should be encouraged.

Instead of attempting to specify what should be done, advance proxy directives specify who should make crucial decisions on our behalf. These instruments ratify our fitting desire to be placed in the hands of loving caregivers whom we trust with our well-being when we can no longer act to promote it ourselves. Naming of proxy decisionmakers provides clear identification of who shoulders responsibility to act for the patient and makes it clear to physicians and others with whom they must deal. Such knowledge makes it much more likely that there will be the desirable discussions between family and professional caregivers at all important junctures of treatment and care." Taking Care: Ethical Caregiving in Our Aging Society, The President's Council on Bioethics, (2005), p 215 (emphasis in original).

A health care power of attorney is a legal document that authorizes a person of your choice (your “agent”) to make health decisions for you if you ever lack capacity.  Your agent can act whenever needed, even if you are not terminally ill or permanently unconscious. The document can include guidance as to your philosophy regarding end-of-life care and other situations that may arise.

The appointment of an agent combined in one document with end-of life guidance is sometimes referred to as a "comprehensive health care advance directive."  "Because it is more comprehensive and flexible than the other available planning tools, a comprehensive health-care advance directive is the preferred legal tool for planning these types of decisions." The American Bar Association, Legal Guide for Americans Over 50 (2006), pp 107-108

The “Pink Card” – a simple and free first step

Pennsylvania law allows you to name a representative as your proxy to make health decisions for you when you lack capacity. A group in Lycoming County Pennsylvania has taken advantage of this law to  develope a very simple method – the “Pink Card” – as a free and easy way for Pennsylvania residents to appoint their health care representatives. Your Pink Card names the person you have chosen. This person will be authorized to guide your treatment if you ever lose the ability to make health decisions.

The Pink Card can be carried in your wallet or purse so that your doctor and other health care professionals will know who is in charge and how to contact that person. You can obtain a free “Pink Card” and explanatory booklet by calling Linkage Lycoming at 570-323-8555, or visiting its website at  http://www.stepcorp.org/linkage/linkage.htm.     

More information on the “Pink Card” is also available on this blog at my earlier post Making Good Health Care Decisions: What is a “Pink Card” and Should You Have One?
 
Health care powers of attorney, living wills, and Pink Cards are tools that we can use to maintain some control over important health care decisions that are made for us.  It is better for everyone, patients, health providers, and families, if these types advance directives are in place and you have specified who will decide for you.   

Advance planning works best if you have also discussed your preferences with your chosen proxy and other family members. To be most effective advance directives need to be combined with communication. But people may be understandably reluctant to start the conversation. I have found that the “Health Care IQ Test” is a useful way to ease into a discussion with your family members about the health choices you would prefer.  The Health Care IQ Test can be downloaded free of charge from the Marshall, Parker and Associates website at http://www.paelderlaw.com/pdf/IQ_test.pdf.  

For a more extensive discussion on the subject of advance directives and proxy health decision making, see my article A Professional's Guide to Living Wills and Advance Health Care Powers of Attorney in Pennsylvania which is available online at  http://www.paelderlaw.com/PA_Attorneys_Guide_to_AD.html.

Saturday, April 9, 2011

Bill Would Require Legislative Oversight of Estate Recovery Expansion

When an individual who is 55 years or older receives Medicaid payment for nursing facility services or home and community based long term care, his or her estate becomes subject to the estate recovery rules. Upon the death of that Medicaid recipient, Federal law requires Pennsylvania to seek to recover the amount of the Medicaid payments from the recipient’s probate estate. 

Medicaid estate recovery is a federal mandate. Any state that wants to continue to receive federal contributions to its Medicaid program is required to implement an estate recovery program. While Pennsylvania runs our state program, most of the money collected is forwarded to the federal government.   

During the administration of former Governor Rendell, the Department of Public Welfare sought to expand the scope of estate recovery well beyond that required by the federal mandate. The attempt was rejected due to strong objections voiced by an unusually broad coalition of groups that were concerned with the negative implications of the DPW proposal.  
   
Now, Pennsylvania State Senator Kim Ward (R - Westmoreland) has introduced legislation that would ensure legislative oversight before any future DPW proposal to expand estate recovery could be implemented. Senator Ward is the well-respected Chair of the Senate Aging and Youth Committee and a member of the Senate Public Health and Welfare Committee, so her legislative proposal would appear to have a good chance to be enacted. 

Here is a summary of Senator Ward’s proposal (SB 901). The summary was prepared by the Pennsylvania Association of Elder Law Attorneys (PAELA). PAELA was one of the professional organizations that opposed DPW’s previous expansion proposal.  (Note that I am the current President of PAELA.)

Proposed Changes to Title 62 P.S. (Public Welfare Code)
Subsection 1412 (Repayment from probate estates)
Background

Medicaid estate recovery is based on a federal law that requires Pennsylvania to try to recoup the costs of long term care services paid by Medicaid.  Estate recovery was first implemented in Pennsylvania in 1994.  For the past 17 years, Pennsylvania has wisely limited its scope to the dimensions mandated by federal law – collection from the probate estate of the recipient of Medicaid.  Because the claim has been limited in this way, houses owned jointly by a husband and wife have not been subject to the estate recovery claim if the spouse in the nursing home died first.  

In 2009, in a misguided attempt to collect additional revenues (most of which pass through to the federal government), former Governor Rendell’s budget proposed expanding estate recovery to reach property held as joint tenants or tenants by the entireties, life insurance, life estates, trusts, annuities and any “other assets in which the deceased individual had any legal title or interest at the time of death.”  If passed, this proposal would have resulted in significant financial harm for the surviving spouses of nursing home residents.  In addition, it would have created major titling and conveyancing problems for real and personal property, and would have negatively impacted the traditional use of life insurance by survivors

The Pennsylvania Association of Elder Law Attorneys (PAELA), along with a large coalition of groups including the PA Bankers’ Association, PA Land Title Association, Insurance Federation of Pennsylvania, AARP PA Chapter, PA Bar Association, Philadelphia Bar Association, and the PA Coalition of the Alzheimer’s Association strongly opposed the Governor’s proposal and worked hard to educate legislators about the unreasonable burden and devastating financial effects the proposal would have had on some of Pennsylvania’s most vulnerable citizens.  Legislators heard the concerns of these groups and responded by eliminating this proposal from the final budget bill. 

Proposed Legislative Change

The legislative process was essential in preventing the ill-conceived recovery expansion proposal from passing.  But under current law, the Governor unilaterally and without legislative oversight can implement a proposal like this to expand estate recovery.  A change this significant, with such potentially devastating effects, should not be permitted without the public debate and discussion that are part of the legislative process. Legislation has been introduced (Senate Bill 901) that would eliminate the Governor’s authority to expand estate recovery without legislative oversight. This result would be achieved by deleting the third sentence of Subsection 1412(a) as indicated below.  

§1412. Repayment from probate estates.  (a) Notwithstanding any other provision of this act or any other law, the department shall establish and implement an estate recovery program to recover medical assistance paid with respect to individuals who were fifty-five years of age or older at the time that assistance was received. Under this program, the department shall recover from the probate estate of an individual the amount of medical assistance paid for all nursing facility services, home- and community-based services and related hospital and prescription drug services.  [DELETED: With the approval of the Governor, the department may expand the estate recovery program by regulation to include medical assistance for services other than those listed in this section and to recover against other real and personal property in which an individual had any legal title or interest at the time of death.]  The department's claim shall have the priority of a debt due the Commonwealth.

Summary provided by PAELA.  www.paela.info.   April 2011

For more information on Medicaid estate recovery in Pennsylvania, you can read my article The Medicaid Death Tax at http://www.paelderlaw.com/medicaiddeathtax.html.  

Monday, April 4, 2011

Triple Play for Many Pennsylvania Marcellus Landowners

In his energy speech last month President Barack Obama finally gave a nod to natural gas. He said, "Recent innovations have given us the opportunity to tap large reserves—perhaps a century's worth—in the shale under our feet. The potential here is enormous." 

It’s been less than four years since the first successful Pennsylvania shale well using the new technologies (Range Resources Gulla No. 9 well) went online. But the innovations (optimizing fracking and horizontal drilling) have already made Pennsylvania, with its massive Marcellus shale play, a leader in the shale gas revolution that is changing the energy equation worldwide. We are riding a fast train – no one seems entirely sure where we will end up – but our trip is certainly an energy game changer. (See, Could Shale Gas Power the World, Time Magazine, March 31, 2011).
  
The Marcellus has also been a game changer for landowners in Northern and Western Pennsylvania. While we are only in the early innings of the “shale gale,” tremendous wealth has already been produced, and our lives and the environment in which we live have been permanently altered. 

I spent an interesting two days last week with Pennsylvania royalty owners at the convention of the Pennsylvania chapter of the National Association of Royalty Owners. PA NARO provides information and advocacy for landowners with gas royalty interests in Pennsylvania. 

Of particular note were presentations by Dr. Terry Engelder, the Penn State University geologist whose 2008 calculation of the extraordinary amount of natural gas that could be extracted from the Marcellus shale stimulated exploration and production (E&P) company and Wall Street interest; Scott Perry, Director of Oil and Gas Management for the PA Department of Environmental Protection, who reassured the audience of the Departments attention to environmental concerns; attorney Dale Tice and Earle Robbins, both of whom are certified mineral managers, who laid out the basics of mineral management for landowners; and State Senator Gene Yaw, who provided a legislative update.  

I came away with an increased realization that our Pennsylvania shale gas play is long term and involves much more than the current development of the Marcellus.  The Marcellus is just one of a number of layers of shale that are stacked on top of each other.  Other layers could prove to be incredible sources of natural gas. 

Exploration of the Utica, which lies beneath the Marcellus, has already begun. As noted in a recent article on geology.com, “what we are seeing today from the Marcellus is only the first step in a sequence of natural gas plays. The second step is starting in the Utica Shale.”

“[The Utica] also has the potential to become an enormous natural gas resource. The Utica Shale is thicker than the Marcellus, it is more geographically extensive and it has already proven its ability to support commercial production.

It is impossible to say at this time how large the Utica Shale resource might be because it has not been thoroughly evaluated and little public information is available about its organic content, the thickness of organic-rich intervals and how it will respond to horizontal drilling and hydraulic fracturing. However, the results of early testing indicate that the Utica Shale will be a very significant resource.”

Once the well pads, pipelines, and other infrastructure are in place, companies will be able to take advantage of what Range Resources CEO John Pinkerton calls a “triple play' from their drilling in the Marcellus region. This refers to the potential for Range and other E&P companies to be able to produce natural gas and natural gas liquids not only from the Marcellus Shale but also from the Upper Devonian Shale above the Marcellus and the Utica Shale about 1,000 to 2,000 feet below the Marcellus.

Once companies like Range have incurred the cost for acreage, roads, surface location, water management, gas lines and compression in relation to the Marcellus, the incremental cost to develop the Upper Devonian and Utica will be reduced by approximately one-third according to Mr. Pinkerton.  Range believes that about 60 percent of 700,000 net acres that it plans to develop for the Marcellus has potential for the Upper Devonian and Utica shales.

My take away is that we should expect the extraction of our shale gas resources in Pennsylvania to continue for decades.  Focusing solely on the Marcellus might be short-sighted. In analyzing the value of your subsurface gas and mineral rights, whether for purposes of sale or estate planning, landowners should recognize the potential that exists for development of rock layers other than the Marcellus. Your royalty interests may eventually be worth a lot more than what the Marcellus wells on your property will produce.  

Landowners need to plan for the long term and the royalties your family may receive over many decades from all the layers of gas and oil beneath your land.  

Here are a few links to more information: