Newly-Insured Face Hurdles as They Navigate Health Insurance Benefits

Posted by Professor Marianne Artusio

Sunday’s New York Times brings the discouraging news that many people, newly-insured under the Affordable Care Act, are having difficulty figuring out how to use this new benefit. Although eight million people have now enrolled, government and communities now must assist them to be smart consumers of health services and to use their medical coverage wisely. Many, insured for the first time, are perplexed by the complications of co-pays, premiums, and the task of choosing a primary care doctor. It is such a new world for many who are thankful to have insurance, but uncertain how to use it. Just as medical providers are struggling to adjust to the changes wrought by the Affordable Care Act, enrollees are grappling with such mysteries as the differences between coverage for urgent care clinics, emergency rooms and retail clinics. Even the task of understanding the information on an insurance card can be baffling. Fortunately, the Centers for Medicare and Medicaid Services (CMS) has rolled out an extensive program and easy-to-understand materials to help community groups teach “health insurance literacy.” These efforts are vitally important if the promise of expanded coverage is to be realized. It would be tragic if unfamiliarity with the ordinary processes of handling health insurance defeated newly-insured enrollees, jettisoning them into the ranks of the uninsured again. The problem is particularly acute among enrollees with limited English language proficiency and older enrollees. CMS is producing printed materials and videos in Spanish and many other languages.

However, the confusion for older enrollees may warrant even greater efforts. Many, who are nearing the Medicare eligibility age of 65, are not computer-literate. When they signed up for health insurance initially, they were not able to study the available plans offered on the online marketplace.  Relying on friends, family or community services, many did not fully understand the choices available or their responsibilities and must now contend with new and bewildering obligations. For example, the schedule for making premium payments may be confusing; an enrollee who does not pay the premium will eventually find the policy has been cancelled with no chance to reenroll until the next enrollment period.  I spoke with Rebecca Cashman, who was featured in the Times article and whom I have known since she was born.  She is the program coordinator for Resources for Human Development, a non-profit agency in Philadelphia, offering educational programs and assistance for new enrollees and she has spent her career working for better health outcomes for at-risk populations.  “People who are not familiar with computers find the need to engage with technology daunting,” she said.  “Setting up an email account for their coverage can be unsettling. They will need more in-person explanations and help to understand their coverage.”

The recession ended the working lives of many older adults, many of whom never had health insurance. Surely, their health needs cannot wait until they qualify for Medicare. Preserving the health of those on the brink of their senior years requires fully utilizing all health care coverage, so “health insurance literacy” programs should be presented to senior centers and caregiver programs too. Medical providers and insurers have a role here too, participating in educational programs and operating telephone information lines, staffed with patient, unflappable and knowledgeable employees.

Click here to read the New York Times article.

Click here to read the Centers for Medicare and Medicaid Services  “From Coverage to Care” materials.

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Elderly Are Hit by a Surge in the Price of Generic Drugs

By Professor Marianne Artusio

Last week the New York Times reported a startling trend: a sudden increase in the price of commonly-usedpill picture generic drugs.  Because older persons take more prescription medication and many rely on the cost-savings expected from generic drugs, this is a worrisome development.  In fact nearly 80% of all medicines prescribed in the United States are generic drugs. For example the price of digoxin, a commonly used generic heart medicine has nearly tripled since last October, so elderly patients may be forced to choose between life-saving medicine and other critical needs.  For most seniors, selecting a prescription plan under Medicare Part D often depends on the cost of the needed medicine available under the plan.  Unexpected price hikes play havoc with the choice made, usually after careful computation of expected out-of-pocket costs. Many seniors spend countless hours studying the available Medicare Part D plans with family or counselors, seeking the best deal.  Because the Medicare Prescription plans cannot be changed until the next enrollment period, seniors who expected to pay reasonable co-pays for generic drugs can find themselves in serious trouble.  According to the Times article the Federal Trade Commission has been looking into anticompetitive practices of the generic drug manufacturers. The alarming rise may be partially the result of fewer generic manufacturers; when generics are cheap manufacturers find producing them not so profitable and cease production, leaving few remaining manufacturers who face little competition.  Last year the National Community Pharmacists Association revealed that the price of some essential generic drugs have soared 600% – 1000% over the last few years, resulting in staggering co-pays for some patients.  And the response of insurance companies?  The Times reports that some insurers are requiring doctors to complete multiple page forms to justify renewing a higher cost generic in an effort to discourage physicians from prescribing it for their patients or putting the drug in a higher co-pay group.  Most insurance plans available to seniors require the doctor to prescribe a generic drug when it is available, but when the cost of generic drugs climbs, the potential savings diminishes, inevitably resulting in higher co-pays or higher insurance premiums.  When market forces are allowed to whipsaw the prices of what are supposed to be the cheaper drugs for seniors, their financial stability can be shaken and their health compromised.  Is there a legislative solution?  Some states (Arkansas, Kentucky and North Dakota) have passed generic drug pricing transparency laws requiring disclosure by pharmacy benefit managers (PBMs) of the maximum allowable costs (MAC) for generic drug reimbursement.  Because PBMs often have multiple MAC lists, they can charge the insurance plan a higher MAC, but pay the pharmacy a lower MAC, keeping the difference.  By requiring this disclosure, pharmacies are better able to negotiate reimbursement rates and these 3 states have taken a positive step to prevent price gouging for generic drugs.  Click here to read the Times article.

Click here to read the report of the National Community Pharmacists Association.

 

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As LGBT Rights Advance, So Do Housing Options for LGBT Elders

Posted by: Professor Marianne Artusio

It seems that advances in the law for the LBGT community come with increasing rapidity and as they do, the prospects for comfortable and respectful aging for LBGT seniors advances comparably.  Last week the 10th Circuit Court of Appeals in Kitchen v. Herbert held that Utah’s 2004 constitutional amendment and other statutes banning same-sex marriage violated the equal protection and due process guarantees of the 14th Amendment.LGBT Blog Post. 2 On July 1, 2014, a federal district court also struck down as violating the guarantee of equal protection Kentucky’s constitutional and statutory bans on same-sex marriage.  While the struggle for marriage equality is certainly not over, these decisions are but two more examples of the nation’s progress toward full respect for LGBT rights and relationships.  Regrettably this respect has been only recently gained and many older LGBT couples enter their senior years with a personal history of discrimination, fear and secrecy.  This is why it is so heartening to see the opening of senior housing complexes specially intended for the LGBT community.

As greater numbers of LGBT seniors live openly, whether in couples or as singles, the need for housing that is supportive and welcoming correspondingly grows. Gay seniors are much less likely to have children or grandchildren to support or assist them according to a National Gay and Lesbian Task Force Policy Institute study.   A lifetime of discrimination both in employment, education, health care and in lawful family relationships has left LGBT seniors with poorer economic and health outcomes.  Discrimination that has prevented members of LGBT couples from benefitting from a partner’s health insurance coverage, spousal protections in governmental benefits, private pensions and the other financial benefits of marriage has led to devastating health disparities and economic insecurity in old age.  Click here to read the Task Force Report. As these seniors age, many without adequate family and social supports, their need for safe housing in accepting communities becomes urgent.  Older generations, raised in times that were less tolerant, may not welcome their LGBT neighbors, making the choice of a suitable home in later life a thorny task.  

Thankfully an array of housing choices for LGBT seniors is beginning to emerge. Stonewall Gardens, an assisted-living complex is slated to open soon in Palm Springs, California.  Although also open to straight residents, the facility, whose name evokes the 1969 Stonewall Riots that is often cited as the spark of the gay rights movement, intends to offer a comfortable and accommodating environment for LGBT residents.  In 2007, Triangle Square, an affordable rental complex catering to LGBT seniors, opened in Los Angeles.  When it opened it was one of only a small number of housing options for LGBT elders, but now its operator, Gay and Lesbian Elder Housing, is starting to fill the Argyle, another Los Angeles affordable housing complex with a special mission to serve this population. True to the ideal of equality inherent in the LBGT rights movement, the Argyle will be open to non-LGBT tenants. However, the distinctive focus on housing LGBT seniors will assure steady stream of LGBT applicants for these apartments. In January 2014, Philadelphia opened the John C. Anderson Apartments, hailed as gay-friendly, affordable senior housing, intended to provide housing for the generation whose activism, pride and openness cost them the economic opportunities and family supports others have achieved.

As the Courts undermine the legal barriers to LGBT relationships, hopefully financial hardships, discrimination and social isolation will plummet as well.  In that future, gay-friendly senior housing will be a choice, but one selected for the delight in the variety of human experience and not to avoid intolerance and misunderstanding.  As the Court in Kitchen v. Herbert said last week:

A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court eloquently explained, “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”

Click here to read the full opinion.

Click here to read the Kentucky district court opinion, Love v. Beshear,

In the same spirit, President Obama declared June 2014 as Lesbian, Gay, Bisexual and Transgender Pride Month. As I watched the events of the New York 2014 Gay Pride March on June 29, I was reminded of the older generation who braved discrimination, ridicule and violence to demand recognition and respect.  They certainly deserve a dignified later life.  Click here to read the President’s proclamation.

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Healthy Sleep Patterns May Limit Cognitive Decline

Posted by: Professor Marianne Artusiozzzzz

Researchers from the University of Oregon and the University of Newcastle in Australia, participating in the World Health Organization’s Study on Global Ageing and Adult Health (SAGE), have reported results of the first segment of a long-term study of sleep patterns and mental abilities.  Gathering data from over 30,000 middle age and older subjects from six countries, the researchers demonstrated that getting 6-9 hours of sleep each night was correlated with higher scores on cognitive tests; in fact the scores were higher than for individuals getting more than 9 hours of sleep as well as those sleeping less.  While there have been a number of smaller studies reporting similar results, this large study across six countries with diverse cultural, economic and environmental conditions shows similar results worldwide and validates the growing realization among health professionals that sleep patterns may contribute to good cognitive health or cognitive decline.  While the study is still ongoing, the initial report offers intriguing possibilities for developing new strategies to reduce the incidence of dementia.

The aging of the population promises that our society will have to adjust to increasing levels of cognitive decline.  Even minor steps that hold a prospect for retaining mental abilities during later life should be explored; they would be sound investments. If healthy aging is enhanced by healthy sleep, what significance does this have for policy-makers?  A number of provocative questions have occurred to me:

  • Should sleep standards be made part of each state’s nursing home and adult home standards? 
  • Should sleep assessments and treatment for sleep disorders be a mandatory service under health plans? 
  • Should municipal noise ordinances be revised in light of the study results? 
  • Should residential building codes be amended with a goal of building construction and design that enhances sleep?

Many other possibilities can be explored as the results of this worldwide study continue to unfold. The study was published in the June 2014 issue of the Journal of Clinical Sleep Medicine. Click here to read the abstract of the paper.

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President Obama and Governor Cuomo Step Forward to Combat Elder Abuse

elder_abuse_ribbon1Posted by: Vanessa Cavallaro, Juris Doctor Candidate, May 2016

In an effort to, inter alia, “raise awareness of the scope of elder abuse and educate the public about the warning signs of possible abuse, neglect, and financial exploitation,” Governor Cuomo proclaimed June 15, 2014 as “Elder Abuse Awareness Day” in New York State. Cuomo echoed President Obama’s proclamation of “World Elder Abuse Awareness Day” that mirrors the initiative of the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations in 2006.

Adult Protective Services is available in every New York county to prevent, identify, investigate, and remedy neglect, exploitation or abuse of adults. The agency investigates every oral or written referral to determine which of their numerous services is appropriate; however, Adult Protective Services cannot take action unless it has been notified of a case. A tremendous amount of cases of physical, emotional, sexual, and financial elder abuse go unreported because abused individuals may fear retaliation by abusers or lack physical and/or cognitive ability to be aware of and report abuse. There is likely also a reluctance to create trouble for the abuser, 90% of whom are the victim’s family members. The New York State Elder Abuse Prevalence Study determined that there are twenty-three unknown cases of abuse and neglect for every one reported case. This heartbreaking statistic is evidence of the alarming number of vulnerable, elderly people not getting the assistance they need because authorities are not made aware of the situation.

With the exception of residential health facilities under N.Y. Public Health Law § 2803-d, New York’s legislature has yet to enact requirements for individuals to report suspected elder abuse despite the existence of laws that require a laundry list of individuals to report suspected child abuse under N.Y. Social Services Law § 413. New York attempts to encourage observers of abuse to report abusive conduct by providing immunity from civil liability to any person making a good faith referral regarding endangered adults in need of protective or other services under N.Y. Social Services Law § 473-b.

According to the National Center on Elder Abuse, the population of people aged 85 or older is expected to swell from 5.8m in 2010 to 19m in 2050. Along with financial and medical difficulties comes a harsh reality of the mistreatment of one of society’s most vulnerable populations that cannot be ignored any longer. Stricter elder abuse laws should be implemented to reflect important morals that protect and value life. It is time to take action against this phenomenon of abuse through legislation that will provide for prevention and the greatest rate of intervention at an early stage. Mandatory reporting laws are not bullet-proof solutions that stop elder abuse dead in its tracks, but saving the life of even one person would make the law a success. At the very least, mandatory reporting laws can provide a mechanism for collecting more data in order to combat this “inexcusable and intolerable” conduct.

Although New York is slow to make progress in comparison to other states, the legislature is taking steps to address the elder abuse issue. Since May 2013, the State Senate and Assembly have introduced an amendment to N.Y. Social Services Law § 473-b that would establish a statewide toll-free elderly abuse hotline. In addition, the State Senate passed a bill that would require the Office of Children and Family Services to report elder abuse cases and issue a biennial report.

Until all meaning is taken away from the phrase “elder abuse,” everyday is Elder Abuse Awareness Day.

If you or someone you know may be a victim of elder abuse in Suffolk County, NY, please contact:

Suffolk County Office for the Aging (for non-emergency situations)– aging.office@suffolkcountyny.gov
H. Lee Dennison Building                                       Riverhead County Center
100 Veterans Memorial Highway                          County Road 51
Hauppauge, NY 11788-0099                                  Riverhead, NY 11901-3397
(631) 853-8200                                                         (631) 852-1420

Adult Protective Services
(631) 854-3195, 3196 and 3197

Elder Abuse Counseling Program at the Victims Information Bureau of Suffolk
(631) 360-3730.
VIBS 24 hour hotline–(631) 360- 3606

You can read about World Elder Abuse Awareness Day here.
You can read statistics and data from the National Center on Elder Abuse here.

Jessica Coombs, Mandatory Reporting Laws in New York: Why Aren’t We Protecting Our Elderly Like We Protect Our Children?, Albany Gov’t Law Review Fireplace Blog (Feb. 17, 2014, 8:34 PM), http://aglr.wordpress.com/2014/02/17/1551/

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Touro Law Center Hosts Inaugural Session of the Touro College and University System Conference on “Aging in Place: A Stakeholder’s Conference on Care, Healthcare, Finance, and Law”

Dean Salkin Welcomes the Audience to the Inaugural Session of the “Aging in Place” Conference

On Friday, June 20th, 2014, a diverse and attentive audience gathered at the Touro College Jacob D. Fuchsberg Law Center for the inaugural session of the Touro College and University System Conference on “Aging in Place: A Stakeholder’s Conference on Care, Healthcare, Finance, and Law.” The interdisciplinary audience consisted of individuals from the fields of social work, law, government, and academia including, Touro Law Center faculty and students.

Following Dean Patricia Salkin’s opening remarks, Carol Levine, Director, Families and Health Care Project, United Hospital Fund, kicked off the conference by providing a passionate and insightful glimpse into the “Comprehensive Care Continuum” in particular, the challenges confronting many of our nation’s vulnerable seniors and their caregivers. Ms. Levine’s presentation titled, “Aging in Place: Can We Get There from Here?”, addressed the complicated web of options available to seniors when attempting to navigate our healthcare system. At the conclusion of her presentation, Ms. Levine posed a series of “Questions for the future” notably:

  • How do we educate the public about planning for care needs, and reach a broad audience?
  • Are there better ways to develop well trained and well paid health care workers?
  • Who will take the lead on these issues?

Panel II’s keynote speaker, Eric Sokol, Vice President of Public Policy at the Alzheimer’s Foundation, discussed the “Impact of Alzheimer’s Disease and the Policy Responses to this Challenge.” Among the numerous facts and statistics cited by Mr. Sokol during his presentation, the following were particularity noteworthy:

  • The total number of people with Alzheimer’s Dementia in the United States in 2050 will be 13.8 million, up from 4.7 million in 2010;
  • According to the Rush Institute Study, Alzheimer’s Disease is the third (3) leading cause of death in the United States. (Click here to access the Rush Institute Study which was published in the March 5 print issue of Neurology, the medical journal of the American Academy of Neurology.).
  • In 2012, the direct costs of caring for people with Alzheimer’s Disease to American Society totaled an estimated $200 billion, including $140 billion in costs to Medicare and Medicaid. 

At lunch, Jean Accius Ph.D., Director, Health & Long-Term Services and Supports, AARP, provided our speakers and attendees with plenty of food for thought during his presentation, titled, “The Fierce Urgency of Now: The State of Long-Term Services & Supports.” During his presentation, Dr. Accius referenced the “State Scorecard on Long-Term Services and Supports for Older Adults, People with Disabilities and Family Caregivers.” Please click here to access the report and an interactive map of State Rankings and a “State Comparison Tool.”

Greg Olsen, Executive Deputy Director, New York State Office for the Aging, got the afternoon session off to a great start by providing a brief overview of the programs and services offered by the New York State Office for the Aging. In addition, Mr. Olsen went on to consider innovative strategies for financing the long-term care offered to seniors.

Panel IV was lead by Professor Marianne Artusio, Director of Touro Law Center’s Aging and Longevity Institute and Director of Touro’s ElderLaw Clinic. Marianne relied on her vast experience in Mental Hygiene Law Article 81 guardianship matters in presenting the challenges faced by lay guardians to maintain an incapacitated person in the community while simultaneously meeting the complicated obligations imposed by the Court’s orders. Before Professor Joan Foley’s closing remarks, Bob Abrams, Esq., co-founder of Touro’s Aging and Longevity Law Institute, rounded off the conference by cataloging the myriad of legal issues affecting seniors and emphasized the critical role lawyers will play in shaping the way the nation addresses the care afforded to our aging population.

Thank you to all our speakers who provided materials. Materials will be uploaded to the Institute website in the coming weeks.

A special thank you to all of our speakers for taking the time to address our audience and for contributing their skill and expertise to this exciting and rewarding conference. In addition, thank you to those speakers who provided PowerPoint presentations and materials which we hope to upload on to our website in the coming weeks.

The second session of our Aging in Place Conference is scheduled to take place on Thursday, September 18th at the Touro Law Center during which participants will join in facilitated working sessions on innovative models, policies, proposals for legal change, and possible demonstration projects.

If you are interested in attending this second session, please write or call the Conference Administrator, Robert Cannon at rcannon@tourolaw.edu or (631) 761-7190.

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New York’s Criminal Law Lacks Adequate Protection for Elderly Victims of Financial Crimes

Posted by: Professor Marianne Artusio

The New York Legislature has finished its work for the year and has packed up to return to fund-raising, campaigning and some constituent service, but Albany has missed a critical opportunity to protect elders against serious financial abuse. Certainly punishing criminals, who abuse the elderly, after their money and financial security have been stolen, may not restore the dignity and economic well-being that has been lost, but the legislature should take seriously proposals to more effectively punish the crooks who prey on vulnerable seniors. This year a package of proposals, developed by the New York State White Collar Crime Task Force, intended to make prosecution of crimes against the elderly easier, has been left behind.

The Task Force recommended a number of sensible measures to improve the criminal justice system for elderly victims, such as permitting an older person to be accompanied by a social worker or informal caregiver when testifying before a grand jury. It is easy to understand the calming effect that the presence of a trusted caregiver may have for an elderly witness who must testify before a grand jury. The experience can be overwhelming for an elderly victim who may have physical, emotional or mental difficulties and may fear retribution from the alleged perpetrator. Many are so fearful of the experience that they fail to appear, so allowing a trusted caregiver to attend can quell fears and allow the senior to testify with greater comfort. Another sensible proposal would have allowed a conditional examination of a witness 75 years of age or older in a criminal prosecution. Current law allows an examination under oath before trial of a person with a demonstrable physical illness or incapacity, but many seniors even if seemingly healthy at the start of a prosecution, may decline or even die when long delays defer a trial. Allowing conditional examinations of elderly victims can preserve the testimony of an abused senior and reduce the possibility that extended trial delays will preclude a successful prosecution.

Significantly, while New York has enacted criminal penalties for physical assaults against elderly victims or disabled victims, there has been no corresponding protection for financial exploitation of impaired adults. Often in a larceny or similar prosecution the perpetrator claims that the elderly victim (often a trusting relative) made a gift or permitted the transaction and the elderly person does not have the capacity to testify otherwise. The Task Force recommended amendments that would have clarified that the defendant cannot obtain consent from a person who is incapable of understanding the nature of the transaction. This would have plugged a gaping hole in New York’s effort to prevent and punish financial crimes against the elderly.

Maybe next legislative session these needed amendments will be introduced again, but for now measures to protect this vulnerable population have been disregarded.

You can read the Report of the New York State White Collar Crime Task Force here.

 

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