A Little Known Option in Resolving Nursing Home and Care Giving Disputes

The graying of America has altered the definition of ‘home” for many of our elderly loved ones. Most adult children with elderly parents rely on some type of supportive care to subsidize their private care giving. With the increase in our population of elders, the flaws in the care of elders become ever more apparent leading to more complaints about care, billing, short staffing, administration and other problems. In addition, distance care giving provides fertile ground for family disputes as our aging parents’ transition from independence to dependence.

There is a legal out-of-court settlement process that most people don't know about. Most nursing home complaints and care giving disputes can be resolved without a lawyer or going to court.

Mediation is used increasingly to resolve care-giving disputes, whether in the community or in nursing facilities, with home or home health care disputes, or within families. Commonly referred to as elder or generational mediation, mediation can be arranged quickly, is confidential, does not require attorneys and costs very little in comparison to litigation. Mediation can include as many interested parties as necessary, unlike court hearings where generally only two sides can participate. Mediation encourages all parties, even the elder, to have a voice which is empowering and can mend relationships rather than create further division.

The parties involved make their own decision as to how the situation will turn out. It differs from arbitration where a judge or arbitrator hears evidence, takes witness testimony, and rules on the matter in dispute. The parties in arbitration relinquish control of the outcome of the dispute when they put it in the arbitrator’s hands. By contrast, mediation allows the parties themselves to determine how a conflict will end or whether it will end. The mediator guides the discussion, gives objective feedback, prevents the conflict from escalating, keeps order, and encourages each side to consider alternatives to the ongoing dispute.

Mediation by design puts you in control as opposed to the courts where both plaintiff and defendant hire lawyers to represent them and a judge makes a decision. The mediator arranges a formal meeting with you and any and all other parties to discuss the issues in a neutral environment. The mediator facilitates open communication ensuring everyone has the opportunity to talk and explain their position leading the parties from disagreement toward resolution by exploring options to resolve their differences. When both parties have agreed upon a mutual resolution, the settlement becomes legal. The settlement is enforceable in Court should either party not keep the agreement. Most complaints and disputes can be resolved in one or two days without the high cost of traditional court.

Medicare Buy-in Plan Runs Into Strong Opposition

By Mark Crane, BAFreelance medical writer, Brick, New Jersey

December 14, 2009 — If you're confused about the healthcare reform proposal in the US Senate to allow citizens aged 55 and 64 years to buy in to the Medicare program, you're in good company.

The details of the plan, first announced last week by Senate Majority Leader Harry Reid, D-Nevada, as part of a compromise to win over senators opposed to a "public option" — a federal health insurance plan to compete with private insurers — are shrouded in secrecy.

Reid is waiting for the Congressional Budget Office to complete a cost analysis of the measure before providing specifics. Even the No. 2 Democrat in the Senate, Richard J. Durbin of Illinois, said he was "in the dark" about aspects of the plan.

What is known about the measure has engendered rapid and fierce opposition from healthcare providers, including the American Medical Association, the American Hospital Association, and America's Health Insurance Plans, mainly because Medicare reimbursement rates are inadequate.

In broad strokes, Reid's compromise would expand Medicare eligibility to people aged 55 to 64 years who are uninsured or paying high premiums in the individual market. Most of those with employer-provided coverage would not be eligible.

Buy-in Plan Condemned

The American Medical Association, which had supported the bill passed by the House of Representatives that would create a public option, was quick to condemn the Medicare buy-in idea.

"The AMA has longstanding policy opposing the expansion of Medicare given the fiscal projections for the future," AMA president J. James Rohack, MD, said in a statement. "Currently, the flawed Medicare physician payment formula will cause a drastic 21% cut to physicians caring for Medicare patients in January, and 22% of Medicare patients looking for a new primary care doctor are having trouble finding one."

The Mayo Clinic, often cited by Obama as a model of what healthcare reform might look like, condemned the buy-in proposal in stark terms. "The current Medicare payment system is financially unsustainable," the group said in a statement posted on the Mayo Clinic Health Policy Blog last week. "Any plan to expand Medicare, which is the government's largest public plan, beyond its current scope does not solve the nation's health care crisis, but compounds it.

"Expanding this system to persons 55 to 64 years old would ultimately hurt patients by accelerating the financial ruin of hospitals and doctors across the country. A majority of Medicare providers currently suffer great financial loss under the program. Mayo Clinic alone lost $840 million last year under Medicare. As a result of these types of losses, a growing number of providers have begun to limit the number of Medicare patients in their practices."

Writing in Monday's USA Today, American Hospital Association President Richard J. Umbdenstock described the buy-in plan this way: "Imagine living in a house with a crumbling foundation and trying to repair it by adding more bedrooms."

"Making millions of non-seniors eligible for Medicare, at the same time that millions more Baby Boomers are reaching retirement age, will further weaken the program and put many hospitals at tremendous risk," Umbdenstock said. "Their ability to provide other critical services their communities need — such as trauma care, emergency care, disaster readiness and more — would be jeopardized. And, one key reason health care costs are higher for everyone is that Medicare does not pay its fair share of the cost of care. Reform should end this 'cost shift,' not make it worse."

Health insurers, who opposed the House bill because of its inclusion of a government-run public option plan, quickly opposed the Senate buy-in idea. "This would add millions of new people to a program everyone agrees is going broke," a spokesman for America's Health Insurance Plans said in a statement.

Legislators Weigh In

Several legislators weighed in on the proposal on the Sunday talk shows yesterday.

Some potential supporters of the buy-in proposal have been reticent in their endorsements because so few details are known. "The whole reason we're doing this bill is to bring down cost, first for the American people in healthcare, and secondly for the deficit," Democratic Sen. Claire McCaskill of Missouri said on Fox News Sunday. "So until we get the numbers back from the Congressional Budget Office, we're all on hold."

If the Congressional Budget Office finds the bill would increase the national debt of patients' out-of-pocket expenses, she would "absolutely" vote against it, she said.

A few were enthusiastic about the idea. Rep. Anthony Weiner, D-NY, called it "the mother of all public options.... Expanding Medicare is an unvarnished, complete victory for people like me who support a single-payer system. Never mind the camel's nose — we got his head and neck in the tent," he told the New York Times last week.

That sentiment was what disturbed Sen. Ben Nelson, D-Nebraska, about the buy-in. "I'm concerned that it's the forerunner of single-payer — the ultimate single-payer plan, maybe even more directly than the public option," he said yesterday on CBS' Face the Nation. Nelson previously said he won't support the bill unless fellow Democrats establish a firewall to ensure no public money goes toward abortion coverage.

Sen. Judd Gregg, R-Vermont, said the plan could push patients out of private insurance. "The sickest 55-year-olds will seek to join Medicare and no one knows what it will ultimately cost."

Speaking on Fox News Sunday, Gregg cited a new study released December 11 by the Centers for Medicare and Medicaid Services. It found that national health spending from 2010 to 2019 would total $35.5 trillion. That is $234 billion more than the amount projected under current law. To pay for coverage of the uninsured, the bill would impose new fees on health plans, drug manufacturers, and medical device companies, Chief Actuary Richard S. Foster said. The fees would "generally be passed through to consumers in the form of higher drug and device prices and higher insurance premiums."

Republicans have been staunch in their opposition to a public option or buy-in. "If the Titanic is sinking, the last thing you want to do is to put Grandma and more of your family on the boat," said Charles E. Grassley, Republican Senator of Iowa, in the New York Times last week.

Yet Reid's hopes that the Medicare buy-in might win over some moderates, such as Joseph Lieberman, appear to be sinking. The independent Connecticut senator, whose vote would be needed to block a Republican filibuster of healthcare reform, said he is staunchly opposed to the proposal.

"It has some of the same infirmities that the public option did," Lieberman said yesterday on CBS' Face the Nation. "It will add taxpayer costs. It will add to the deficit. It's unnecessary. The basic bill, which has a lot of good things in it, provides a generous new system of subsidies for people between ages 55 and 65, and choice and competition."

Elderly, Dementia and the Criminal Justice System

A LinkedIn contact of mine, Laurence Harmon, recently posted a question for discussion in one of our groups: he is trying to figure out how our healthcare and judicial "systems" can help in Alzheimer's situations when things go wrong. It related so well to a recent article we posted on our Facebook page.

"People with Alzheimer's disease and other forms of mental deterioration are increasingly getting entangled with law enforcement. That has police, prosecutors, judges, psychiatric workers and caregivers struggling to balance the humane treatment of a vulnerable but volatile segment of the populace against the need ...to protect the public." (Source: http://www.talkleft.com/story/2003/07/28/777/13607)

I have lost count on how many times in my 30 + years in senior care I have witnessed similar "horror" stories that violate the rights and dignity of elders. The husband in the one case Laurence referenced (http://tinyurl.com/yk8xyl5) did his best based upon his knowledge of the options available to him. Obviously his intent was not to do harm. Dementia and other causes of functional disability can create considerable burdens for families and society as a whole, but it may be possible to partially alleviate this strain through technical innovations that replace some functions of human caregivers.

We're looking at two key issues here: one, the knowledge of support options that empower families to ensure that their loved ones can remain safely in the family home where they can thrive. The second issue, which I address here, is that lack of advocacy and understanding in the criminal justice system for the mentally ill/mentally challenged/cognitively impaired, i.e., how to balance protection and autonomy—and other ethical dilemmas.

Law enforcement officers are usually the first responders when violence occurs, and they often lack training to understand and handle individuals with dementia. Patients are often arrested, interrogated, and jailed for months because alternatives are not available. Model programs do exist in many states that provide training programs for law enforcement, monitor jails on a daily basis for dementia patients, and provide mental health/law enforcement dementia response teams in the community.

Social workers in the justice system are overburdened with mental health courts, IF the state/county even has them. If they do not, or if they do and lack a social worker/case manager with enough knowledge base of elderly cognitive challenges to advocate appropriately for the family and the elder, we end up with end results similar to your case example. They deserve so much better.

Part of the answer is the county prosecutor's relationship with their Elder Services. The relationship with Elder Services encompasses various areas, including education, outreach, investigation and prosecution. There needs to be trainings for investigators and workers, and involvement in various public information and awareness efforts. Elder Services provides the critical link between those who may have been victimized and the criminal justice system. As the elder population in this country continues to expand and our senior citizens strive to continue to live independent lifestyles, the need for this collaboration will only increase, especially in the area of post-arrest. A challenge here is that many social workers from Elderly Services defer post-arrest advocacy to mental health court (here again, if the county has one) case managers in the court system already overburdened with clients.

The burden this creates for families and communities is high, and more often than not, inadequate health care resources leave patients and their families without the necessary support. A prevailing double stigma ­ attached to mental disorders in general and to the end of life in particular ­ does not help in facilitating access to necessary assistance.

So, in answer to your question, Laurence, our focus needs to be on redirecting resources toward treatment, not containment, and establishing alliances between agencies and providers. As I further venture into mediation as a resource for elders, it may well be a viable intermediary acting as an advocate within the court system to resolve criminal complaints for those with dementia in the criminal justice system. Other recommendations in summary of my earlier points would be:

• Expanded and improved community services.
• Integration of systems to meet the needs of people with mental illness and other co-occurring disorders.
• Training for police to improve initial response to contacts with the mentally ill.
• Increased diversion from the criminal justice system for people with mental illness.
• Improvements in correctional mental health services for those who cannot be diverted.
• Pre-release planning for transition from prisons and jails back into the community with appropriate medical and support services.
  

The right to quality of life calls for profound modifications in how societies see their elders, and for breaking associated taboos. The way societies organize themselves to care for the elderly is a good indicator of the importance they give to the dignity of the human being.

Deborah A. Wallace, MSM, MGS, PCM, CCM
President/Senior Mediator
Accordo Elder Mediation Specialists, LLC
www.accordomediation.com

Accordo Mediation Specialists, LLC Launches Elder Care Mediation Division - Butler County News at Cincinnati.com

Accordo Mediation Specialists, LLC Launches Elder Care Mediation Division - Butler County News at Cincinnati.com

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Custody Battles and the Elderly: A Growing Trend

Custody battles involving adult children fighting over their elderly parents and where they should live, who should care for them and who should control their finances is a growing trend. As this trend increases, we encourage families to find a mediator to resolve a dispute or provide options for the future.

Caring for an aging parent can be complicated. Adult children may find themselves managing a parent’s health, personal and financial affairs. Concerned children and frustrated parents may end up arguing over the next step, and siblings may find themselves laboriously assigning new tasks and responsibilities in an effort to create a safe environment for a parent.

Some family members find it hard to communicate with each other when their parent is in need of care. Perhaps they were not raised to work out problems together so that as adults they don’t have a family council strategy to rely on. Such a process may seem unnatural to them. But that is often exactly what is needed, especially in situations in which one child is caring for the parents and the others are left out of the loop.

Children all have a common bond to their parents and as a result a common obligation to each other. When disagreements arise, suspicions begin to grow. Suspicions or distrust often leads to anger which in turns causes people to sever the channels of communication between them. This can occur between parent and child, between siblings or between all of them.

Other than the parent’s lawyer or accountant, most families would not consider inviting a third party into the discussion. Elder mediators a private, beneficial option for families in need of neutral guidance. The goal of elder mediation is to allow seniors a voice in the decision-making process and to help families communicate with compassionate candor about situations which need to be addressed.

Elder mediation is especially effective at the beginning of the decision process – when families are fact finding, struggling with options and discovering feelings about their parents or adult children that escalate and make clear thinking difficult. For instance, an important form of elder mediation is simply to convene a family meeting where a trained neutral third party is present to create the space for everyone in the family to be heard on an important developing family transition. This type of meeting, before the family is in crisis, can strengthen family ties and enable all family members to deal with the changing nature of their relationships and the realities of their situation. It allows family dynamics including sibling rivalries to be addressed at a time when everyone is calm and thoughtful decision making can occur.

What Is Elder Mediation And Why Is It Advantageous?

Mediation is a process of bringing two or more disputing parties together and having them mutually negotiate a solution to their disagreement. The mediator is not a judge and does not render a decision but is there to make sure that communication flows freely between the disputing parties. Elder Mediators are trained in the art of negotiating resolutions between elderly parents and family members and have education and expertise in gerontology (aging studies).

Accordo Elder Mediation Specialists, LLC have the expertise in this area and understand the unquie challenges associated with families caring for elderly loved ones.

In mediation, everybody who is affected by the situation has an opportunity, in a neutral and confidential setting, to tell their story. Whenever possible, that includes the elderly family member.

Mediation can achieve results that the family by itself may not be capable of realizing or have the expertise to achieve. Elder Mediation is valuable because having a trained expert in communication:

• Gives the family a perspective it could not gain by meeting together on its own
• Allows all family members involved to meet and prevent problems from arising by anticipating situations that may cause disputes
• Can invite other experts, such as care managers or other care providers, to the meeting to educate the family and give them a new perspective
• Allows parents to focus on their abilities rather than their limitations
• Allows children to come up with and consider options not thought of previously
• Encourages uninvolved family members to become involved
• Allows parents to express wishes and desires that had previously gone unuttered
• Allows for a neutral third party to challenge family members and make them take responsibility for their actions
• Promotes consensus of all involved which in turn creates a much higher rate of compliance with the plan than with any other process (the success rate for compliance with elder mediation is estimated to be about 80% to 85%)
• Requires a written plan with specific responsibilities which makes compliance feasible.

Elder care mediation helps caring people

How can you preserve relationships, build cooperative and collaborative decision-making processes, and improve the quality of care for your elderly loved one?

Elder care mediation helps caring people make better decisions, settle disputes, and solve family issues. Participants share their perspectives and needs, and work together to make responsible decisions that affect their lives. Families face many challenges in providing continued, loving care for their elders. Many families struggle to communicate and to agree about the care of their parents or other family members. Often people don't know where to turn for help with the myriad of life-changing decisions to be made. Financial, housing, medical, care-giving, end-of-life and legal issues need to be considered. Caring families might disagree not only among themselves but also with their elderly parents, caregivers, facility administrators, and other professionals. Long-distance care-givers have their own areas of concern.

The elder care mediator responds to the challenges facing elders and their families, and is informed about current issues in the industry. Elder care mediation acknowledges the inherent rights and integrity of seniors and provides them an opportunity to express their values and standards. If the senior is cognitively impaired, the mediator will insist on an appropriate advocate. Inherent in the mediation process is the goal of preserving and improving relationships by enhancing and strengthening trust and respect between the participating parties.

A mediator will gather background information about people's concerns, identify areas of mutual interest, and provide a forum for discussion. Interviews can be conducted via telephone, e-mail, fax, etc., and mediation sessions can be held in homes, facilities, or by teleconference.

In choosing a mediator, consider your needs. Does your parent require a medical assessment to determine the type of care? Are legal concerns at issue, whether over inheritance, family business or assigning the power of attorney? Or do you just need to bring the family together to decide what needs to be done and who will do it?

“Bringing a neutral person with a professional and compassionate attitude into our disputes was the best thing for all involved,” said Susan, a woman I know who struggled for months over health and safety issues before she enlisted the service of a professional care manager mediator. “My parents shared their concerns and listened with acceptance to mine. All of a sudden we could communicate and work out a plan that they could live with; then, I could relax knowing they were safe.”

It's hard enough for families to navigate the complicated and emotionally charged decisions related to elder care when everyone gets along. Throw in a family with tensions or outright hostility and it's no wonder that disagreements sometimes end up in court, an expensive proposition that can easily magnify divisions.

Using Mediation to Manage Conflict in Long Term Care Facilities

Conflict in any location where human beings congregate is inevitable. We are all evolutionarily programmed to defend ourselves when threatened, and to protect ourselves if we believe we are being wronged, even if the perceived attack is emotional rather than physical. Seniors are no exception.

When individuals who have lived independently in their own homes for many years are thrust together with caregivers in situations over which they have only partial control, conflict may boil up. Traditionally, administrators of assisted living facilities and nursing homes have tried to work out conflicts by talking and meeting with family or other concerned parties as well as the residents themselves. Sometimes this works. At other times, however, outside help may be necessary to resolve the conflict.

Dispute resolution is a process through which conflict is resolved by consulting a neutral person to assist both parties. Dispute resolution is strongly encouraged by the courts because it is practical, because it is far cheaper than litigation and trial, and because it is successful in resolving conflict about 80% of the time, regardless of the nature of the dispute. However, in health care settings and senior care facilities, using a neutral person to assist in conflict management is rare if not nonexistent. Although dispute resolution is a familiar concept to lawyers, nurses and caregivers may only be familiar with using a neutral person to mediate a labor dispute, divorce or other court-related cases. But mediation has far broader applications than that, and it is a very useful technique to manage conflict in long-term care settings.

I am fighting with my brother about caring for mom. What can I do?

Many families experience conflict over what to do for an aging loved one. Some fight over who is doing the most work. Some argue and criticize the choices and work one sibling is doing for an aging parent. Others are in a constant state of disagreement over where their elder should live, or who should take care of the elder. All of these areas of conflict can be successfully addressed. If the family is unable to resolve their own disputes by talking them over in the family, it may be time to consider an outside source of help: elder mediation.

This is a process in which people who have a dispute choose an outside neutral person to work with them to air their differences and make a guided effort towards agreements. The parties sit down with the mediator, who is a trained professional, to negotiate solutions to the problems that are causing distress among them. Sometimes, the process only takes two or three hours. If there are multiple issues, the parties to dispute, may need to have two or more sessions with the mediator. The mediator does not tell the parties what to do, or decide the solutions for them. Rather, a mediator helps people to see things from a different point of view, and to reach their own negotiated agreements.

Mediation can save untold grief and stress, and can prevent things from boiling over into lawsuits and destructive actions by one family member against another. At Accordo Eldercare Mediation Specialists, LLC, we work to help families in dispute resolve their issues and enhance the quality of life for them and their elderly loved ones. Visit us at www.accordomediation.com

What is Mediation? How Can It Help?

Mediation is a way to resolve disputes by discussion and negotiation, using the help of a neutral person, the mediator. It is usually voluntary. Disputing parties agree to use mediation to avoid continued conflict, to avoid or end lawsuits by settlement of the dispute, or to "clear the air" of ongoing disagreement which has reached the point of stalemate.

Who can use Mediation?

Anyone who wishes to resolve a disagreement or conflict by meeting, talking, and accepting the guidance of a mediator can use mediation. It requires a willingness to come together in a neutral place and spend the time working to get the dispute resolved. It also takes a willingness to listen to the other party or parties to the disagreement, and to make some compromises or agreements with them.

What are the duties of a legal guardian for elderly parents?

The term “legal guardian” has different meanings in different states. I’ll take it to mean that your question applies to the duties of a person who was appointed guardian over an incompetent elder by a court. A guardianship is also called a conservatorship in some places. The guardianship can cover either the aging person’s money, or the person’s safety and welfare, or both.

The duties of a guardian, generally speaking, are to oversee the welfare and safety the aging person under guardianship, and to attend to the financial needs of the individual, using his or her assets wisely. A guardian has a legal duty, called a “fiduciary duty”, to act in the best interests of the individual. A guardian has total control over the aging person they are appointed to serve.

They can decide how to spend the elder’s money, where the elder will live, what medical care the elder will receive, and how much freedom the elder or aging parent has in his or her life. The powers can be total. An elder under guardianship loses the freedom to make decisions for himself or herself about all important aspects of life.

The guardian also has a duty to protect the aging elder from abuse, to keep complete records of all expenditures, and to report regularly to the court which appointed the guardian, as to the elder’s finances and status. The requirements vary somewhat from state to state, but generally, the court decides how often the guardian must return to court to report to the court how money is spent and what the status is of the elder. Being a guardian is a very heavy responsibility. It is formal, public and supervised.

Mediation and Eldercare Issues

Families face many challenges in providing continued, loving care for their elders. Many families struggle to communicate and to agree about the care of their parents or other family members. Often people don't know where to turn for help with the myriad of life-changing decisions to be made. Financial, housing, medical, care-giving, end-of-life and legal issues need to be considered. Caring families might disagree not only among themselves but also with their elderly parents, caregivers, facility administrators, and other professionals. Long-distance care-givers have their own areas of concern.


To be successful, Elder Mediation requires specialized elder experience. The transitions demanded by aging can strain family relationships. For older adults and their families, mediation is the low-stress alternative for resolving medical, financial, care provider, and interpersonal issues. Whether the subject is living arrangements, medical care, billing, consumer complaints, or estate planning, the process of mediation can turn the worst argument into a productive search for solutions. It is a non-adversarial way to resolve just about any kind of dispute involving elder persons.