Monday, May 25, 2015
University of South Dakota Assistant Professor of Law Thomas E. Simmons has an intriguing article in the summer 2015 issue of Hastings Women's Law Journal. From his article, "Medicaid as Coverture," here are some excerpts (minus detailed footnotes) to whet your appetite:
Not long ago, married women possessed limited rights to own separate property or contract independently of their husbands. Beginning in the nineteenth century, most of the most serious legal impediments to women enjoying ownership rights in property and freedom of contract were removed....
Three twenty-first century developments, however, diminish some of this progress. First, later-in-life (typically second) marriages have become more common.... These types of couples were not the spouses that reformers had in mind in designing inheritance rights or other property rights arising out of the marital relationship....
Second, perhaps as a product of advocacy for women's property rights, and perhaps out of a larger social remodeling, women's holdings of wealth have made significant advances.... [But] women of some wealth (in later-in-life marriages, especially) may in fact find themselves penalized by the very gender-neutral reforms that were designed to help them; especially, as will be unpacked and amplified below, when those reforms interface with Medicaid rules.
Third, beginning in the late twentieth century, the possibility of ongoing custodial care costs became the single greatest threat to financial security for older Americans.
As practicing elder law attorneys experience on a daily basis, Medicaid eligibility rules, despite the so-called "Spousal Impoverishment" protections, can impact especially harshly on married women as the community spouses. They are often younger and thus will have their own financial needs, frequently have been caregivers before being widowed, but their personal assets may still be included in the Medicaid estate for purposes of determining their husbands' eligibility. This article takes a critical, interesting approach to that problem.
May 25, 2015 in Discrimination, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (0) | TrackBack (0)
Friday, May 22, 2015
Professor Rebecca Dresser has written a column on "right to try" laws. "Right to Try" Laws: The Gap between Experts and Advocates was published in the May-June 2015 Hastings Center Report. The abstract for the column provides
The year 2014 brought a new development in the bioethics “laboratory of the states.” Five states adopted “right to try” laws intended to promote terminally ill patients’ access to investigational drugs. Many more state legislatures are now considering such laws. The campaign for right to try laws is the latest move in an ongoing effort to give seriously ill patients access to drugs whose safety and effectiveness remain largely unknown. Although scientists and policy-makers oppose the right to try approach, it has proven quite popular among state legislators and the public.
As we described last month, Nevada is one of the states facing serious "elder guardianship" concerns, and specifically concerns about court-appointed, fee-paid private guardians. This week, a Nevada court removed a guardian in one of the cases at issue, calling the problems observed "enormous" and "more than technical." The court commissioner who granted the requested relief continues to be the focus of other inquiries about his supervision of private guardians. Contact 13 News described matters revealed in its own investigation and presented in court:
Since the fall of 2013, the court has allowed [the guardian] Parks to control every aspect of [an elderly married couple's] lives--where they would live, how their money was spent, what items they could keep--and sometimes, who they could see.
"They took my parents," said Julie. "I didn't know who. I didn't know what."
When Contact 13 looked at the guardianship case, we found mistakes, over-charging and double-billing by [guardian] Parks. Our findings played a key role in Wednesday morning's hearing.
"She's costing me $300 an hour to sit here and degrade me and my family," Rudy said. "I will not stand for it and I will not pay for it."
Parks' attorney did the talking for her, claiming the process to remove Parks is being rushed, "...based on innuendo, based on hearsay, based on salacious representations made on the media about Ms. Parks," said Aileen Cohen. "This matter is turning into a witch hunt."
But Commissioner Jon Norheim was having none of it. "The idea that she's been compliant? Not even close."
For more about the ongoing inquiry into alleged abuses by private guardians in Nevada, see Couple Liberated from Guardianship System, by Kean Bauman, for Channel 13 News, KTNV, Las Vegas, Nevada.
UPDATE: Before the virtual ink had even dried on my posting above about one couple's case, additional word comes that the Chief Judge of the Eighth Judicial District, Clark County, Nevada has ordered systemic review and immediate changes in the guardianship appointment and oversight authority. For the Court's important May 21, 2015 order, see here. Additional details are available from the Las Vegas Review Journal.
In the May 2015 issue of Conflict Resolution Quarterly, four authors use quantitative and qualitative data collected in Australia to identify risk factors for the financial abuse of older people by a family member, analyze the potential usefulness of mediation as a strategy to prevent this form of elder abuse, and to identify knowledge and skills important to mediators facing potential financial abuse.
The authors note that mediation is in the early stages of consideration as a strategic tool for combating financial elder abuse, and thus much of their report focuses on "potential" risks or benefits of mediation, rather than instances of its use. Nonetheless their study leads to interesting conclusions, including:
(1) enhancing the rights and wishes of older people,
(2) opening and facilitating communication between family members and older persons,
(3) enhancing accountability and responsibility of family members, and
(4) reducing family conflict.
The authors also identify potential concerns, including:
Thursday, May 21, 2015
Anyone who's noticed the upsurge in M&A activity in the senior care industries will want to take special notice of today's news, with the announcement that CVS Health will spend $10.4 billion to buy Omnicare, thus giving CVS an even stronger pipeline for prescription drug distribution to the elderly. (In 2006, CVS acquired Caremark Rx Inc. for a reported $21 billion.)
The deal announced Thursday will give one of the nation's biggest pharmacy benefits managers national reach in dispensing prescription drugs to assisted living and skilled nursing homes, long-term care facilities, hospitals and other health care providers. Omnicare's long-term care business operates in 47 states and the District of Columbia. With more people entering assisted-living residences as the U.S. population ages, CVS Health says there is a "substantial growth opportunity" for companies serving those patients.
Cincinnati's Omnicare also provides pharmacy consulting and runs another segment that provides specialty pharmacy services. Specialty drugs are complex medications that treat certain forms of cancer or hepatitis C, among other conditions. They often represent treatment breakthroughs but can cost considerably more than other prescriptions. Use of these drugs is climbing, and insurers and employers are looking for help containing that cost.
This deal should keep a lot of lawyers busy! From The American Lawyer, news of four major law firms involved in the latest CVS acquisition.
St. Louis Elder Law Attorney Martha Brown recently recommended a 2013 documentary, writing: "It is called 'Moving with Grace.' It is played a lot in St. Louis on the local PBS station as reporter Stone Phillips and his parents lived in St. Louis. It is a wonderful documentary about the trials and tribulations of aging parents without the drama of a dysfunctional family." That is an important message, right? The challenges associated with "growing older" can hit everyone, even the "best" of families.
American Public Television, that distributes the program, previews it and offers a link to scheduling in your area here, explaining:
Like many baby boomers, former NBC anchor Stone Phillips and his siblings found themselves caring for their aging parents. Ninety-two-year-old Vic, a World War II veteran, copes with chronic heart issues, although his mind and memory remain "as reliable as a Bob Gibson fastball." Grace, his wife of 66 years, suffers from dementia, which robs the once-gregarious former teacher of her short-term memory. MOVING WITH GRACE, an intimate documentary Phillips produced and shot, follows this charming couple as they move out of the family home in Missouri and adapt to life first in a retirement community and later in an assisted-living facility. This honest and, at times, poignant story highlights the common struggles associated with elder care and its consequences.
Thank you, Martha, for sharing this resource!
May 21, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Television | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 20, 2015
This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston. Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living. Their organization has some 800 individual members, representing a majority of the communities in the state.
My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick. Here the "contract" trumped the statute.
In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.
May 20, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
ElderLawGuy Jeff Marshall has always been a bit ahead of his time, including being among the first to recognize that aging can carry with it a distinct set of legal issues. Not every lawyer is equipped to deal with families facing dramatic changes, whether in terms of temperament or legal knowledge. Jeff constantly stays on top of new developments, in both law and technology. For example, read here how Jeff uses "tweeting" as a tool, to help him stay current on the law, and engaged with the wider world. Jeff has often inspired me, from the moment of my first "big" meeting with him here in Pennsylvania almost 20 years ago, at a little conference on a very cold winter day in Wilkes Barre. It is hard to believe, but he's been a specialist in elder and estate law for 35 years! Here's part of the tale, from the Sun-Gazette.com:
When attorney Jeff Marshall returned home in 1980 his vision, according to a news release, was to found a law firm that would serve the needs of older adults. A native of Lock Haven, Marshall had graduated from Stanford Law School in 1972 and had remained in California for the rest of that decade. By 1980 he was ready to return to his roots in Pennsylvania.
At the time, there was no such thing as an "elder law firm." But Marshall recognized that his older clients faced a complicated array of legal, financial, and health care issues, the news release said. Their legal planning needed to be coordinated with non-legal concerns to best protect their dignity, comfort and self-determination. So he set about putting together a team of professionals with backgrounds in law, nursing, social work, and care management who were able to meet his client's broad needs.
Thirty-five years later the seeds he planted have grown into one of the most respected elder law and estate planning law firms in Pennsylvania with four offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton.... The firm celebrated its 35th anniversary at its 19th Annual Professional Updates held on May 6 in Williamsport and May 7 in Scranton.
Congratulations -- and thank you -- Jeff!
Tuesday, May 19, 2015
Recently I had the opportunity to read a report of Northern Ireland's independent Commissioner of Older People advocating for "a change of culture" to better protect older people in care settings. The thirteen primary proposals strike me as concise, reasonable, and extraordinarily important, for any (make that every) country, including the U.S.. See what you think:
1. The rights, quality of life, dignity and care needs of vulnerable older people should be at the heart of planning, delivering, regulating and inspecting care services; it is their needs that must matter the most.
2. Standards for the care of vulnerable older people should be clearly displayed and available to all service users and their families and relatives of all nursing, residential and domiciliary care services as well as for any prospective users.
3. Inspection processes should be rigorous, with decisive and timely enforcement action taken when failings are detected.
4. The regulation and inspection service should include a rating system for care homes and domiciliary services. In addition to an overall rating, it should clearly identify if there are any breaches of regulations or failures to comply with improvements required.
5. There should be clear and rigorously applied sanctions taken against care providers for non-compliance with the minimum standards.
Monday, May 18, 2015
Publically-traded Brookdale Senior Living, founded in 1978, has grown to become the largest owner and operator of "senior living" communities in the U.S., including for-profit continuing care retirement communities (CCRCs). Thus, it is good to keep an eye on the finances of Brookdale for those of us interested in the long-term financial health of CCRCs and other senior housing options.
Steve Monroe at Irving Levin Associates notes that Brookdale "was no different than the rest of the market, posting sharp drops in first quarter occupancy" for 2015:
"The legacy Emeritus [a component of Brookdale, following a 2014 merger] properties posted a 110 basis point decline from the fourth quarter of 2014, and a whopping 200 basis point decline from a year ago. The legacy Brookdale properties dropped 80 basis points sequentially and 110 basis points from a year ago. This was not good news, but not unexpected. Oddly enough, the legacy Brookdale properties had a 250 basis point increase in community operating margin to 35.2% despite the occupancy declines. The Emeritus properties had a 90 basis point sequential drop in margin, which makes more sense."
How do you achieve a significant increase in "operating margin" despite "occupancy declines?" A good question to ponder. Steve Monroe continues: "The reasons for the legacy Brookdale improvement were a combination of cost controls and more pricing flexibility. Move-ins have been increasing, which is great, but 'cost controls' always make me nervous, especially with the current acuity creep. Stay tuned."
The reference to "acuity creep" is to the increase in average age and frailty of new residents, compared with past years (especially before the financial crisis of 2008-10). This trend impacts CCRCs in several ways, both in terms of market appeal to healthier potential residents, and operating costs tied to an earlier need for higher levels of care. An additional question may be whether low interest rates have supported a bubble in certain segments of senior housing despite the softer occupancy rates, and whether an eventual return to higher capitalization rates will result in lower values and additional consequences.
Along that same line, the Philadelphia Inquirer published a recent article in their "retirement" news edition, noting "Continuing-Care Retirement Community Choice Requires Diligence," by Harold Brubaker, with tips on what to ask if you are a consumer considering a CCRC option.
The University of Surrey in the UK is hosting an international conference on July 6-7 on "Intersections of Ageing, Gender and Sexualities," with speakers from Israel, Iran, Taiwan, Hong Kong, Spain, Italy, Australia, South Africa, New Zealand, the U.S., and, of course, the U.K.
Sociology Professor Toni Calasanti from Virginia Tech is giving the opening keynote address. The half day sessions are separated into "themes," including Embodiment, Temporal (Dis)location, Queer Kinship, Representations, Intersections, and Age, Gender, Sexuality and Care. Several of the sessions explore relationships between sexuality and menopause.
For more on the program, see here.
Friday, May 15, 2015
On May 12, the U.S. Department of Justice announced resolution of a disabilities discrimination complaint initiated by residents of a Continuing Care Retirement Community (CCRC) in Virginia.
The resolution includes filing of a complaint and consent order that resolves allegations that Fort Norfolk Retirement Community Inc. (Fort Norfolk) violated the Fair Housing Act by instituting policies that discriminated against residents with disabilities at Harbor’s Edge, a CCRC in Norfolk, Virginia:
The consent order, which still needs to be approved by the court . . . along with a complaint, in the U.S. District Court of the Eastern District of Virginia. The complaint alleges that beginning in May 2011, Fort Norfolk instituted a series of policies that prohibited, and then limited, residents in the assisted living, nursing and memory support units at Harbor’s Edge from dining in dining rooms or attending community events with independent living residents. The complaint also alleges that when residents and family members complained about these policies, Fort Norfolk retaliated against them. In addition, the complaint alleges that Fort Norfolk had polices that discriminated against residents who used motorized wheelchairs by requiring those residents to pay a non-refundable fee, obtain liability insurance and obtain Fort Norfolk’s permission.
Under the consent order, Fort Norfolk will pay $350,000 into a settlement fund to compensate residents and family members who were harmed by these policies. Fort Norfolk will also pay a $40,000 civil penalty to the United States. In addition, Fort Norfolk will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.
There is a history of similar issues arising in other CCRCs. For example, in 2008, in California, CCRC resident Lillian Hyatt initiated, and eventually resolved to her satisfaction, a discrimination claim based on a ban on "walkers" in the dining rooms of her community.
As the average age of residents in CCRCs has increased in recent years, the "appearance" issues are sometimes raised as a marketing or image concern, contrasting sharply with the expectations of individual residents as they age and seek continued access to the full range of services in their community.
Our thanks to Karen Miller, Esq., of Florida, for bringing the recent Virginia case to our attention.
Thursday, May 14, 2015
PBS is premiering a powerful documentary special, Caring for Mom & Dad, during the month of May, with Meryl Streep as the narrator. A sample? Many of us might find resonance with one adult's "bad daughter" (or "bad son") feelings of guilt, candidly admitted here.
Even more important than the video itself will be the conversations that follow viewing. Check your local public t.v. schedule to see when the program will air in your area. (You can check here, to see if the documentary is scheduled yet in your viewing area -- go to the drop down menu for "Schedule.") Plus, in some markets, the documentary will be combined with a live call-in opportunity for individuals and families to explore health care, social care, financial topics and legal issues with a panel of experts.
My own university, Penn State, is hosting the special on Thursday, May 28, 2015 at 8:00 p.m. (Eastern time), followed by Conversations Live at 9:00 p.m. That is two weeks from today on WPSU-TV, a station that reaches a viewing area of 29 counties in central Pennsylvania. In addition, the Conversations Live program will be broadcast on WPSU-FM radio and can be viewed "on-line" at WPSU.org.
As a result of an invitation to be part of the WPSU studio panel, I've had the opportunity to watch the documentary -- several times (it's that interesting!) -- in preparation to help in responding to audience comments, emails and call-in questions. Additional Conversations Live guests include:
Ai-jen Poo, co-director of Caring Across Generations and director of National Domestic Workers Alliance, will be joining via satellite from D.C. Ai-jen Poo is featured in the documentary, and she also has a particular interest in enactment of a Domestic Workers' Bill of Rights, to deal realistically and fairly with the work force that will be necessary to meet the boomer generation's care needs.
Dr. Gwen McGhan, Hartford Center for Geriatric Nursing Excellence at Penn State, with a research background on informal family caregiving.
Jane McDowell, Hartford Center for Geriatric Nursing Excellence at Penn State, and a geriatric nurse practitioner.
The documentary was produced by WGBH-Boston, with funding assistance from AARP and Pfizer.
Please join us and share your stories and observations. The documentary starts with personal stories, but the public policy messages that emerge are ones that need to be heard at state and federal levels -- and heard clearly -- for there to be hope for realistic, necessary and timely solutions.
May 14, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Film, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 13, 2015
The recent issue of Bifocal, the bi-monthly Journal of the ABA Commission on Law and Aging has a great line-up of articles, including a piece by Social Security Administration (SSA) specialist Janet Truhe on Social Security Seeks Pro Bono Lawyers to Meet Need for Representative Payees. She notes that many disabled individuals do not have family members or other trusted persons who can serve as their agents for receipt and management of Social Security benefits. Anticipating the need for "rep payees" will continue to grow as boomers age, SSA is recruiting attorneys to serve:
Recently, the agency announced the implementation of a pro bono pilot in the State of Maryland (where SSA is headquartered), which is aimed at expanding the pool of suitable representative payee candidates statewide. SSA believes that partnership with the legal community for this purpose is a natural fit....
One particular advantage of this pro bono opportunity is that any attorney, regardless of his or her specialty, can serve as a representative payee with SSA providing any needed assistance. SSA has created a web site for attorney volunteers with training and other information about the role of a representative payee. Any licensed attorney in Maryland, or in neighboring jurisdictions, who would like to volunteer as a representative payee for a beneficiary residing in Maryland can go to http://www.socialsecurity.gov/payee/probonopilot.htm and complete an online registration form. SSA will send the volunteer attorney’s contact information to the servicing local field office. When SSA needs a representative payee for a particular beneficiary, that field office will contact one of the volunteer attorneys and make an appointment for the attorney to come in for an interview and meet the beneficiary.
Hat tip to ElderLawGuy Jeff Marshall for pointing out this SSA recruitment effort.
On Mothers' Day, NPR replayed a great StoryCorps interview with 87-year old Kay Wang, from her growing up days in China to her fearlessness in facing down a thief in Bloomingdales.
My thanks to my Dickinson Law colleague Professor Laurel Terry for making sure we would catch this interesting piece.
One option for seniors needing more income late in life is using the equity in their homes, and "reverse mortgages" may make it possible for the older homeowner to stay in the home longer. The Washington Post recently explored the option of having family members serve as the source of reverse mortgage funding. When the Kids Provide a Reverse Mortgage for Mom and Dad outlines potential pros and cons of family-based financing, starting with the mechanics of the loan:
Here’s a simplified example: Say you and two siblings want to help Mom and Dad, who are in their late 70s. You and your siblings are all doing well enough that you have at least some cash to spare. Ultimately, you want to retain your parents’ house for the estate once your parents pass away, keep costs to a minimum and sell the property only when you, not a faraway bank, choose to do so.
So you sit down with Mom and Dad and determine that, at least for the foreseeable future, they will need about $1,500 in additional income a month. You and your siblings agree to apportion the payments among yourselves in some way, maybe a commitment of $500 a month each for a period of years. You also pick an interest rate that achieves a win-win result for you and your parents — say, 3 percent annually. That’s much lower than a commercial lender would charge but higher than what you’ve been earning on your bank deposits or money market funds. There are no required fees upfront — hey, it’s Mom and Dad.
Thanks to Maryland elder law attorney Morris Klein for the pointer to this article.
Tuesday, May 12, 2015
We've written on this blog several times about successful prosecutions connected to so-called "off label" drug use, including the use of antipsychotics for agitation in dementia patients. See here and here, for example. Now, courtesy of a New York Times article, there is news of a pharmaceutical company's lawsuit to preempt such prosecutions, raising First Amendment free speech rights as grounds for off-label advocacy:
On Thursday, Amarin Pharma took the unusual step of suing the Food and Drug Administration, arguing that it has a constitutional right to share certain information about its product with doctors, even though the agency did not permit the company to do so. Lawyers for the company said that they believed their case was the first time a manufacturer had pre-emptively sued the agency over the free-speech issue, before it had been accused of any wrongdoing. Other companies have sued the agency only after they have gotten into trouble....
Lawyers for Amarin say the company is not proposing to market Vascepa to a wider population of patients, merely to share with doctors the results of a 2011 company-sponsored clinical trial that showed the drug lowered triglycerides in patients with “persistently high” levels....
More details about the suit available here.
Earlier this week, I posted about surprising "products" you can find at Belfast,Northern Ireland's St. George's Market.
There are other spots in Belfast that also bring a smile. Near the law courts are two shops that offer tailoring and "Legal Clothing," one, appropriately enough, run by the Suitor family, and the other with the nice chosen name, Law Suit.
In Avoca, an Irish-family run business with stores in several spots, both in north and south Ireland, I ran across another "sign of the (aging) times." Walking past the card collection in the shop in Belfast, I noticed an array of birthday cards, running from age 2 to ... 80, 90, and yes, 100! The proportion of the population in Northern Ireland over age 65 is approaching the 20% mark.
Monday, May 11, 2015
I'm catching up on news items after being away for a few days. There are additional insights about the sad trial of Henry Rayhons in Iowa, that ultimately resulted in his acquittal, from one of the jurors, who also happened to be a reporter. Too often it is easy to focus about what is wrong with the court system, but here is a reminder of just how seriously most jurors take their duties.
Read, "The Rayhons Trial: A Juror's Perspective," by Angela Nelson. And my thanks to Bryan Gruley who made sure we did not miss this powerful coda to the trial.
May 11, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Have you seen the movie Woman in Gold? Lots here for lawyers, law professors, and students to discuss -- which may be why reviewers often seem to mention the movie is, hmm, a tad slow moving. There is nothing like watching a lawyer research in dusty libraries to frustrate a significant percentage of the viewing public waiting for the next explosion or car crash.
At the heart of the movie version of the tale is a document, relied on by Viennese authorities as their provenance for a renowned painting's "rightful" place in Austria. Is it or isn't it a "will" executed by Adele Bloch-Bauer? She was the subject of Gustav Klimt's shimmering painting, and the question is whether the document controls the ultimate fate of the painting. Helen Mirren is her usual marvelous self, portraying the 80+ year-old niece of Adele and a member of a Jewish family targeted by Nazi hatred.
Here's a nice follow-up to the movie story, courtesy of the New York Times, Patricia Cohen's The Story Behind ‘Woman in Gold’: Nazi Art Thieves and One Painting’s Return.