September 21

Medicaid Applicant Not Required to Exhaust Administrative Remedies Before Filing § 1983 Claim

An Ohio appeals court rules that a Medicaid applicant who filed a § 1983 claim in state court was not required to exhaust her administrative remedies before filing the claim, but her claim is dismissed because the state did not violate her due process rights. Rodefer v. McCarthy (Ohio App. Ct., Dist. 2, No. 2015-CA-1, July 31, 2015).

Velma Rodefer transferred a life estate in property to her son for $22,000. When she applied for Medicaid, the state found that the life estate should have been valued at $117,012 and assessed a transfer penalty. Ms. Rodefer challenged the way the penalty period had been calculated and her appeal was denied (Rodefer v. Colbert, Ohio Ct. App., Dist. 2, No. 2014-CA-3, May 22, 2015). 

Ms. Rodefer appealed the decision assessing the penalty period and requested a hearing. At the hearing, the state informed her that her appeal had been dismissed and that the only issue being discussed was a hardship waiver. The state eventually agreed to hold a hearing on the original appeal, a hearing that affirmed the penalty period. Ms. Rodefer filed a claim under 42 U.S.C. § 1983, alleging a violation of due process, among other things. (Ms. Rodefer died while the trial court case was pending.) The trial court dismissed her claim, holding that she needed to exhaust her administrative rights and that the state did not violate due process. Ms. Rodefer’s estate appealed the trial court’s decision.

The Ohio Court of Appeals, 2nd District, affirms, holding that while Ms. Rodefer was not required to exhaust her administrative remedies before bringing a § 1983 claim, her claim for violation of due process should be dismissed. According to the court, “the existence of an administrative appeals system does not preclude [Ms. Rodefer’s] ability to bring her § 1983 claim in state court.” But the court also holds that “although the hearing officers might not have addressed her specific arguments in its decisions, the complaint reflects that [Ms.] Rodefer was provided adequate notices and opportunities to be heard.”

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2015/2015-Ohio-3052.pdf

Did you know that the ElderLawAnswers database now contains summaries of more than 2,000 fully searchable elder law decisions dating back to 1993?  To search the database, click here.  

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September 17

Regular, Moderate Coffee Drinking Tied to Better Brain Health in Seniors

A study of more than 1,400 Italian seniors finds links between patterns of coffee consumption and their risk for “mild cognitive impairment” — declines in memory and thinking that are often a precursor to dementia. The study could only point to associations, not cause-and-effect, the investigators said. But prior research has suggested that caffeine might impact neurological health. In the study, a team led by Dr. Vincenzo Solfrizzi of the University of Bari Aldo Moro, looked at the coffee consumption of 1,445 Italians aged 65 to 84. The participants’ mental health was also tracked for a median of three-and-a-half years. Reporting earlier this week in the Journal of Alzheimer’s Disease, the research team found that people who consistently drank about one or two cups of coffee per day had a lower rate of mild cognitive impairment (MCI) than those who never or rarely drank the brew. The beneficial association was not found among people whose habitual coffee intake exceeded two cups per day, Solfrizzi’s group added.

For the article from HealthDay, click here.

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September 14

Common medications for dementia could cause harmful weight loss

Medications commonly used to treat dementia could result in harmful weight loss, according to UC San Francisco researchers, and clinicians need to account for this risk when prescribing these drugs to older adults, they said. Their study appears online and in the August issue of the Journal of the American Geriatrics Society. “This is very relevant to patient care because unintentional weight loss in older adults is associated with many adverse outcomes, including increased rates of institutionalization and mortality, a decline in functional status, and poorer quality of life,” said lead author Meera Sheffrin, MD, geriatrics fellow in the University of California San Francisco (UCSF) School of Medicine at the UCSF-affiliated San Francisco VA Medical Center. “Our study provides evidence in a large, real-world population that cholinesterase inhibitors may contribute to clinically significant weight loss in a substantial proportion of older adults with dementia.” Weight loss also is a significant problem in dementia patients and linked to increased mortality. Data from randomized controlled trials suggests this weight loss may be an under-recognized side effect of cholinesterase inhibitors, but evidence is limited and conflicting.

For the article from EurekAlert, click here.

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September 10

New Arizona Law Aims to Protect Seniors for Bad Home Care Workers

Advocates are hoping a new Arizona law will help protect seniors from the exploding, but largely unregulated in-home care industry. Sponsored by state Sen. Nancy Barto (R-Phoenix), the law requires non-medical in-home caregiver agencies to disclose to consumers information about background checks, training, cost of services, and hiring and firing policies on an annual basis.

“This is a good first step towards transparency towards those who provide in-home care for vulnerable individuals. I think there needs to be even a little bit more, but this is a good start,” said Laura Oldaker, CEO of By Your Side Senior Care in Tucson and an Arizona In-Home Care Association board member. The law, signed by Gov. Doug Ducey on April 1, applies to non-medical in-home care agencies in Arizona, and not to private, individual caregivers. The disclosure form is not required from specific home health services, senior living facilities, and clients who receive services through federal or state programs, including Arizona Health Care Cost Containment System (AHCCCS), Arizona Long-Term Care System (ALTCS), or Division of Developmental Disabilities (DDD). If agencies fail to give the disclosures to consumers, they are breaking the law. Failure to comply with the law will result in a Class 3 misdemeanor and a maximum 30-day sentence.

For the article from Arizona Daily Star, click here.

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September 7

Advocates Say Mental Health ‘Parity’ Law Is Not Fulfilling Its Promise

Seven years after Congress passed a landmark law banning discrimination in the treatment of mentally ill people, many families and their advocates complain it stubbornly persists, largely because insurers are subverting the law in subtle ways and the government is not aggressively enforcing it. The so-called parity law, which was intended to equalize coverage of mental and other medical conditions, has gone a long way toward eliminating obvious discrepancies in insurance coverage. Research shows, for instance, that most insurers have dropped annual limits on the therapy visits that they will cover. Higher copayments and separate mental health deductibles have become less of a problem. But many insurers have continued to limit treatment through other strategies that are harder to track, according to researchers, attorneys and other critics. Among the more murky areas is “medical necessity” review — in which insurers decide whether a patient requires a certain treatment and at what frequency.

For the article from Kaiser Health News, click here.

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