Florida Elder Law Blog - ElderLawAssociates.com

Florida's new governor appears to be on an unprecedented campaign to roll back protections for residents of long-term care facilities and to install officials in key watchdog positions who favor more relaxed regulation of the nursing home and assisted living industries. The moves are causing an uproar in the Florida press and among volunteer advocates for the institutionalized elderly.

"I've never seen an assault like this," said the ousted head of the main group that monitors nursing homes. A blogger for the Orlando Sentinel put it more bluntly, calling the effort "just plain evil."

Florida has the highest proportion of elderly residents of any state, so when the head of an attorney group predicts the state's intentions, if successful, "would take Florida back to a time where nursing-home residents would be 'warehoused' like animals," it's worth sitting up and taking notice.

It all began with the victory of Republican governor Rick Scott in November. In one of his first acts as governor Scott fired Brian Lee, director of the Florida Long-Term Care Ombudsman Program, a largely volunteer group that annually inspects long-term care facilities for violations of state law and responds to resident complaints. Lee, known as a passionate advocate for the elderly, had successfully served under the two previous Republican governors, Charlie Crist and Jeb Bush, but he was not well liked by the nursing home and assisted living industries.

"They wanted me gone, because I am an outspoken advocate for residents," said Lee.

Within days of Lee's ouster, the executive director of the Florida Assisted Living Association, an industry group that represents many of the the state's assisted-living facilities, met with state officials to recommend a replacement. The suggested replacement has since been appointed.

Following on the heels of Lee's firing, the Scott administration dismissed the state's top volunteer ombudsman, a woman who had filed a whistle-blower complaint against Florida officials charging that Lee was ousted for merely doing his job well.

"This is so clearly willful retaliation," the volunteer, Lynn Dos Santos, 64, told the South Florida Sun-Sentinel. "We're being treated like a nursing home would treat a resident who speaks up too much." In addition to Dos Santos, the state fired a second volunteer ombudsman as well.

While advocates for the state's long-term care residents were watching the dismantling of their leadership, Republican lawmakers introduced bills aimed at drastically limiting lawsuits against nursing homes for negligence and wrongful death. Twin bills in the Florida House of Representatives and Senate aim would place a $250,000 cap on so-called "noneconomic" damages that nursing homes would have to pay, including those for pain and suffering and punitive damages.

An AARP spokesman has called the measures "just an outright handout to the nursing-home industry at the expense of some of Florida's oldest and most vulnerable and most frail citizens."

"The timing couldn't be better for the nursing-home industry," said Brian Lee. "First, they dismantle the ombudsman program, so it takes out the voice that represents the residents before the Legislature. Then they put this legislation out there that limits the ability of consumers to hold the facilities accountable."

It is probably no coincidence that, according to the Miami Herald, "Florida's ombudsman program was uncovering more cases of abuse and neglect than it had seen in the last three decades, with numbers doubling in the past five years." In 2010, residents filed a record 10,000 complaints against long-term care facilities.

The Herald is now in the midst of a three-part series, "Neglected to Death," exposing horrific conditions in the state's assisted living facilities. Its preliminary conclusion: "The Agency for Health Care Administration, which oversees the state's 2,850 assisted-living facilities, has failed to monitor shoddy operators, investigate dangerous practices or shut down the worst offenders."

The U.S. Administration on Aging is investigating whether Gov. Scott's dismissal of Brian Lee constitutes illegal interference in the ombudsman program.

But in the meantime, the official who replaced Lee on an interim basis recently testified in favor of a bill that would end the annual visits ombudsmen make to long-term care facilities to check on conditions. In the minds of Florida's advocates for nursing home residents, it appears increasingly clear that the foxes are gaining control of the hen house.

Labels: Florida Elder Care, florida elder law, Florida Elder Law Attorney, Florida Long Term Care Insurance

Francine Russo
They're Your Parents, Too! How Siblings Can Survive Their Parents' Aging Without Driving Each Other Crazy
Bantam Books. New York, NY. 2010. 286 pages.

Sibling relationships can be difficult even in the best of times, but add in an aging parent and there is bound to be some tension. They're Your Parents, Too! offers insight and strategies to help siblings work together when established family roles are upended.

Written by Francine Russo, a journalist who covers the baby boomer beat, They're Your Parents, Too! provides guidance on transitioning from a family relationship in which the parents are in charge to one in which the children are in charge. Russo explains how siblings may differ in how they handle situations, and the ways parents can create confusion among siblings. Using compelling interviews with real families, Russo explores various family dynamics and how they can affect a parent's care. Stressing that it is important to learn to accept a sibling for who they are, Russo offers strategies for working together with siblings, taming sibling rivalries, and coping with a parent's dementia. Sibling conflicts do not necessarily end when a parent dies, so Russo also discusses the different ways siblings may mourn and how to deal with inheritance issues.

They're Your Parents, Too! is a compassionate and interesting book that can help siblings understand each other better, enabling them to better collaborate on parent care and sustain a family connection.

Labels: Florida Elder Care, florida elder law, Florida Elder Law Attorney

When Robert and Anne bought their family home thirty years ago, their plan was to live through retirement in this home. They had furnished their home with refurbished antiques acquired from their many trips together. It was one of their cherished antique coffee tables that Robert tripped over, breaking his hip. Now with his return from the hospital in a wheelchair, the overwhelming task of making their home accessible for Robert’s wheelchair and safe for both of them faced Anne.

Remodeling for wheelchair access, organizing home furnishings and daily living items or downsizing and relocating to a smaller living area are monumental tasks that are many times thrust on senior home owners. Sometimes the need to do this is brought on by injury or age related illness. Home and yard maintenance can become a daunting chore for even the healthiest of seniors, requiring them to make a downsizing decision.

There is a large and growing industry of specialists who understand these challenges of elderly homeowners and are ready and willing to help with remodeling, organizing or the sale of the home and with the move to a new location.

A professional organizer provides skills in making the home safe and manageable. Relocating furniture, removing hazards such as electrical cords, throw rugs, heavy objects on shelves that might fall are some of the ways they make a home more senior friendly. They specialize in helping seniors part with items that clutter or have no valued use, so to make rooms less crowded or to make ready for a move to a smaller living space.

Handicap remodeling services and senior safety services offer help in adding wheelchair ramps and widening doorways. Bathrooms are made more accessible and safe, with hand rails, walk-in bath facilities and easier access to toilets.

If moving to a smaller retirement home or care facility is the best solution there is another senior specialty provider to call on called a Seniors Real Estate Specialist.

The Senior Real Estate Specialist concentrates more on a complete service package for the sale of the property and/or the purchase of a new living arrangement. The specialist also arranges for the services of a relocation specialist or Senior Move Manager to provide a complete, stress-free package for the elderly homeowner.

A move often requires downsizing and getting rid of a tremendous number of acquired possessions. The relocation specialist or Senior Move Manager, as they are often called, will typically provide a turnkey operation that includes assessing and identifying items to keep, arranging for auction or other disposal, cleaning the home, moving the belongings and setting up the new residence. The manager may also work closely with a real estate agent to arrange for the sale of the home and may also be involved in the financial transactions necessary to move into a new living arrangement.

All the help available to seniors may in itself be overwhelming. How do seniors choose the right service provider for their needs? How do they know they will hire someone qualified, responsible and honest? Area Agencies on Aging and State Better Business Bureaus are good resources to check out available service providers.

Family, friends and religious leaders can be valuable resources to seniors in referring service providers and helping to manage the hiring and supervision.

Labels: Florida Elder Care, florida elder law, Florida Elder Law Attorney

Retirees cannot disenroll from Medicare Part A without also losing their Social Security benefits and refunding all the money paid to them, a federal judge has ruled.

The judge dismissed a case, Hall v. Sebelius , brought by three retired federal employees who have reached age 65 and are receiving Social Security Retirement benefits, but who would like to drop their Medicare Part A coverage, which pays for care in institutions like hospitals.

Anyone who has reached age 65 and who is entitled to Social Security benefits is also automatically entitled to Medicare Part A without charge. However, the three plaintiffs, one of whom is former Republican House Majority Leader Dick Armey, wanted to drop their Medicare coverage because they claimed it threatened their coverage under the Federal Employees Health Benefit (FEHB) program, which they said was superior. They argued that the Medicare law allows them to drop out of the program without losing their Social Security benefits.

In her March 16, 2011, ruling, Judge Rosemary Collyer of the U.S. District for the District of Columbia acknowledged that the three retirees had a legitimate point that the law does not specifically say that avoiding Medicare Part A means losing Social Security benefits. But in examining the law that Congress enacted in 1965 creating the Medicare program, Judge Collyer found that "[r]equiring a mechanism for Plaintiffs and others in their situation to 'dis-enroll' would be contrary to congressional intent, which was to provide 'mandatory' benefits under Medicare Part A for those receiving Social Security Retirement benefits." [emphasis in original]

The judge also pointed out that the plaintiffs would not gain much by renouncing their Medicare coverage. Even if they were to forego and repay all Social Security benefits, under the law "their FEHB-paid benefits would be no more, and no less, than what Medicare Part A would provide," Collyer wrote.

The ruling could have implications for the current court cases challenging the new health reform law. A central basis of these challenges is that the "individual mandate," the reform law's requirement that all Americans have health coverage, is illegal because the government cannot compel citizens into economic activity. Judge Collyer's ruling suggests that the government may already have been doing this in the area of health care for the past 46 years. Indeed, the Washington Times notes in an editorial that on February 22, "D.C. federal district Judge Gladys Kessler cited preliminary rulings in Hall v. Sebelius to conclude that the [individual] mandate is allowable."

The plaintiffs plan to appeal the decision.

To read the court's decision, click here.

For an article on the case in The Blog of Legal Times, click here.

Labels: florida elder law, Florida Elder Law Attorney, Florida Medicaid Planning