Planning for Life

Three Decades of Elder Law: My, How It's Changed!

Posted by Harry S. Margolis on December 8, 2015

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By Harry S. Margolis

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Emily Starr, one of the pioneers of elder law in Massachusetts, and I have been asked to appear on a panel at the annual meeting of the Massachusetts chapter of the National Academy of Elder Law Attorneys (NAELA) this Thursday evening to discuss the history and prognosticate about the future of elder law in Massachusetts. Here are the major changes that I see:

  1. A lot more elder law attorneys. Back when I got into elder law in 1987, no one knew the term "elder law" and almost no one practiced in the field. Now, there are more than 500 members of the Massachusetts chapter of NAELA and a Google search of "Massachusetts elder law attorneys" turns up 217,000 results. (Of course, we didn't have Google back in 1987.)
  2. Fewer nursing home residents. Back in 1987, elder law was primarily about qualifying nursing home residents for Medicaid. This is less the case today in part because there are fewer Massachusetts seniors in nursing homes. The number has dropped from 42,632 in 2004 to 41,044 in 2014, not a huge number but part of a long-term trend. In 1995, there were more than 50,000 nursing home residents.
  3. Less time in nursing homes. Those fewer seniors who do go to nursing homes are sicker than in the past, require more care and spend less time there. In 2008, 46% of nursing home residents covered by MassHealth stayed for one year or less, while 33% were between 1-4 years and 21% were more than 4 years. Of course, they may have spent some time in the facilities before qualifying for MassHealth.
  4. More care options.  The primary reason fewer Massachusetts residents are going to nursing homes is the proliferation of alternatives, including assisted living facilities and private home care. A non-existent industry three decades ago, today there are 287 assisted living facilities registered in Massachusetts. At a lower cost and less institutional than nursing homes, most seniors and their families elect to stay at home or move to assisted living, leaving nursing homes as their last resort when they need to move either because they cannot get adequate care in another setting or they need MassHealth coverage.
  5. More MassHealth coverage of home health care. Another relatively recent positive change is the expansion of MassHealth-covered care options both at home and assisted living facilities, including GAFC, AFC, PACE, PCA services and Community Choices. These allow more people to be able to afford to stay at home or in assisted living facilities rather than having to move to nursing homes. Learn more here.
  6. It's more complicated. While the good news is that there are more options for care and MassHealth helps cover more of them, this means that the whole world of long-term care is more complicated than ever. Just look at the number of acronyms. Seniors and their caregivers often have to make a series of decisions about care as their needs develop over time. A decision to stay at home or move in with a family member today, may be just the first of many. They may need to hire home health care, move to assisted living, spend time in a skilled nursing facility after a hospitalization, and ultimately require nursing home or hospice care. No longer are care decisions once and done.
  7. Geriatric care managers are more important. Since the need for assistance is more often on a continuum and, especially in the area of MassHealth home care programs, the right care plan is not always obvious, it is more important than ever that families use geriatric care managers to determine the most appropriate care as needs develop. Care managers and elder law attorneys need to work together since in most instances neither can act on her own.
  8. It's harder for elder law attorneys. Given the plethora of care options and the uncertainty of the course of care, planning can be more long-term or episodic with adjustments made as needs develop. In addition, the attorney may not be seen to perform the magic that qualifying for MassHealth of nursing home care can seem. Rather than saving $100,000 a year in nursing home care, the attorney may facilitate the receipt of $1,000 or $2,000 in Veterans or MassHealth home health benefits -- a real benefit to the client, but not a home run. And, in fact, it may take more work to achieve this smaller result. Elder law attorneys need to develop new skills and new fee arrangements to make this work.
  9. MassHealth is less cooperative. Finally, while three decades ago the Division of Medical Assistance at least some of the time acted like a partner in working to use public benefits to help care for our seniors in need of assistance, today they seem to see their sole role as protecting the state coffers, no matter the results for seniors, their families, and the facilities providing care.

These changes are not going to stop any time soon which, for better and worse, means that there's always going to be business for elder law attorneys.

Topics: long-term care planning, growth of elderly population, MassHealth, elder law

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