Friday, July 25, 2014

Check out the July issue of Trusts & Estates Magazine

The July issue of Trusts & Estates has several articles that are useful for our classes.  The 4 articles: Planning Ahead of Diminished Capacity by our own elder law guru Professor Larry Frolik & Bernie Krooks, How Neurologic Conditions Affect Planning by Martin M. Shenkman, The Financial Sweet Spot for Long Term Care Insurance by Gregory D. Singer & Michael Schmid and When Elder Law Meets DINK Planning by Amy R. Tripp.  A subscription is required to access the articles.

July 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Consumer Protection and Older Adults: Key Sessions at Consumer Rights Litigation Conf.

The Consumer Rights Litigation Conference, put on by the National Consumer Law Center (NCLC), is set for November 6-9 in Tampa Florida. This is the preeminent program for consumer rights advocates and there are several sessions with a special focus on protection of older persons.  Sessions include:

 "Reverse Mortages: New Changes and Old Challenges to Foreclosure," with Odette Williamson and Margot Saunders, NCLC, focusing on "emerging issues in reverse mortgages, including the new 'ability to pay' determinations and protections for dispossessed spouses."  (Friday morning, Nov. 7)

"Retirement Benefits and Bankruptcy, Do they Mix?" by Tara Twomey (NCLC), asking whether a "fresh start jeopardizes the debtor's ability to receive social security benefits" and to what extent are "retirement savings off the table for nonsecured creditors." (Saturday morning, Nov. 8)

"Challenging Financial Fraud and Scams Aimed at Older Adults," by David Kirman (North Carolina Department of Justice) and Stephan A. Weisbrod (Weisbrod, Mattis & Coply PLLC), examining legal tools that can be used to challenge these practices, including private actions and suits brought under state statutes, such as California's Financial Elder Abuse Act. (Saturday afternoon, Nov. 8)

Details available here on registration and conference logistics.

July 25, 2014 in Consumer Information, Crimes, Programs/CLEs | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

GAO Report-Education for Children in Nursing Homes

The GAO released a report on July 16, 2014, Additional Federal Actions Could Help Address Unique Challenges of Educating Children in Nursing Homes. Here are some excerpts from the GAO summary of the report

Children in nursing homes represent a relatively small group of children whose medically complex conditions often present unique educational challenges. Of the nearly 5,000 school-age children in nursing homes nationwide, about 40 percent needed a feeding tube for nutrition and one-third needed oxygen therapy to help them breathe, according to GAO's analysis of 2012 data ...   GAO observed on recent site visits that these children also had conditions that affected learning... Because of their complex medical needs, these children often stayed in nursing homes for long periods of time—about one-third of them for more than a year....

States GAO visited required nursing homes to refer children to school districts for educational services, and in nursing homes GAO visited, staff typically collaborated with school district officials to help them understand the children's needs. Because of the children's medical fragility, education services were delivered primarily in classrooms at the nursing homes or one-on-one (often bedside), with a few children transported to local schools. Teachers that GAO observed used assistive technology and other methods to aid instruction.

State and local school officials reported challenges to serving children living in nursing homes, including curricula development and teacher training. In GAO's nationwide survey, 31 states indicated having adequate training for teachers was a challenge. According to school officials GAO interviewed, teachers may not be fully prepared to teach children with profound disabilities, and several teachers said they could benefit from the experiences of other teachers about how best to serve these children. While the Individuals with Disabilities Education Act (IDEA) recognizes the importance of information sharing to improve educational results for children, current technical assistance efforts supported by the Department of Education (Education) do not include mechanisms for teachers to share best practices about how to serve children with significant cognitive and multiple disabilities. Such information sharing about effective approaches and strategies could help teachers of children in nursing homes be more fully prepared to provide children with education commensurate with their unique needs.

Education and HHS have different, yet complementary, monitoring responsibilities with respect to children in nursing homes... Although collaboration between agencies with a common interest is a key practice, these agencies do not coordinate their monitoring efforts with respect to the education of these children. The relatively small size of this population makes it difficult for Education and states to gather information on whether these children receive education that meets IDEA requirements. Coordinated efforts between the two agencies could help close any potential gaps in Education's monitoring and help ensure that all children in nursing homes receive an education.

A pdf of the full report is available here.

July 24, 2014 | Permalink | Comments (0) | TrackBack (0)

The Five Halves of Elder Law

The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one).  In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized  that perhaps it really has five halves.  See what you think.

  • In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death.  Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults.  They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.

 

  • Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms.  They have critical skills and knowledge of  health-related benefits under federal and state programs.  They also have sophisticaed  information about the availability of income-related benefits under Social Security.  They often serve the most needy of elders.  Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play. 

 

  • At the state and federal levels, core decisions are made about how to interpret laws affecting older adults.  Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse. 

 

  • A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of  contracts, insurance and public benefit programs that pay for such services.

 

  • Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families.  My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.

Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together. 

My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging,  I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school.  Organizing these "halves" may also help in organizing course materials.

I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law.  What am I forgetting?   

July 24, 2014 in Cognitive Impairment, Consumer Information, Crimes, Health Care/Long Term Care, Housing, Medicaid, Medicare, Other, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Veterans Needs Should Dictate Care

Kaiser Health News (KHN) ran a story, Veterans' Needs 'Should Drive Where They Get Their Care'.  The article features an interview with "Dr. Kenneth Kizer, a former VA undersecretary for health ...  the founding chief executive officer and president of the National Quality Forum, [and] ... now director of the Institute for Population Health Improvement at the University of California, Davis."  The article reports that both houses of Congress have passed bills that allow veterans to go outside of the VA for medical care in certain circumstances.

Dr. Kizer discusses the challenges of creating such a network for care, a contracting program, reimbursement levels and which veterans could go outside the VA system for care.  The interview is available here.

July 23, 2014 | Permalink | Comments (0) | TrackBack (0)

"Defensive Use" of Powers of Attorney & Revocable Living Trusts

Atlanta attorney Kristen M. Lewis has a very interesting article in the July/August issue of the ABA's publication Probate & Property. In "The Crime of the 21st Century: Financial Abuse of Elders," Lewis brings to bear her experience in estate planning and wealth protection, including use of special needs trusts, to examine examples of elder financial abuse, for which she coins the acronym "EFA."

While I wish Lewis had included more citations of authority to support observations regarding prevalence of financial abuse, what I find unique about the article is the discussion of "defensive use" of powers of attorney and revocable living trusts. She advocates careful drafting of powers for individuals serving in these fiduciary roles and to consider the use of co-agents or co-trustees. Their roles may be limited but can expressly include "oversight." 

On a related concern, in my experience POAs are often silent on the issue of compensation for agents, thus opening a door to confusion or worse about an agent's "self-payment."  In contrast, Lewis recommends that POAs

"... should outline whether and how the agent is to be compensated for services while acting as agent (for example, hourly at a specified rate or a fee based on the value of the assets under management). Fairly compensating an agent can encourage him to be more honest, attentive, and diligent in the exercise of his duties."

For revocable living trusts (RLTs), she advises "it is imperative to identify a lineup of disinterested trustees, persons who have no interest in the assets remaining in the RLT on the elder's death."  Further, she observes that increasingly, "attorneys specializing in estate planning or elder law are agreeing to serve as trustee for their clients' RLTs, or as co-trustee with a corporate fiduciary.  Such professionals are typically compensated based on the regular hourly rate they would otherwise charge their clients."  I suspect Lewis is thinking about trusts with substantial assets.

The full article is currently available only in hard copy, but American Bar Association magazines are usually eventually posted at the ABA website, and the website for the Real Property, Trust and Estate Law Section of the ABA is here.   

July 23, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Calendar This Meeting: Housing America's Older Adults

AARP's Foundation announced the upcoming meeting: Housing America's Older Adults: Meeting the Needs of an Aging Population, with keynote speaker, Henry Cisneros.  The meeting is scheduled for September 24, 2014 from 10:30 a.m. to 2:00 p.m. at the Washington Court Hotel Grand Ballroom. The website offers a summary of the meeting

The U.S. Census Bureau projects that the population aged 50 and over will swell to 133 million by 2030, an increase of more than 70 percent since 2000.  Housing will play a central role in the overall well-being of these older adults.  Please join us for a presentation of new research, and to discuss the urgent needs of our aging population.  How can we ensure that older Americans are financially secure, able to maintain independence, engaged in their communities, and safe and healthy?  Featuring a luncheon keynote from Henry Cisneros, former U.S. Secretary of Housing and Urban Development, and a solutions-focused panel discussion with housing policy leaders and innovators.

To register, click here.

July 22, 2014 | Permalink | Comments (0) | TrackBack (0)

The Movement for Human Rights for Older Persons in Paraguay

Mexico and countries in the Caribbean, Central and South America have been working very hard on the question of whether laws are needed to recognize and promote the human rights of older persons.  This commitment was demonstrated during the 2014 International Elder Law and Policy Conference in Chicago, by Rosa Bella Caceres Mongelos from Paraguay, as one of the speakers on the panel focused on "Dignity, Equality and Anti-Ageism Rights of Older Persons." Rosa Bella Caceres Mongelos of Paraguay

Professor Caceres Mongelos is the current president of the Central Association of Retired Public Servants and Teachers in Paraguay, and has experience as a master teacher, educational administrator, and vocational counselor.  She has also taught classes at the university level on leadership.  When I asked whether her organization is comparable to AARP in the U.S., which was started by a retired teacher, she laughed and said "maybe some day."  I think she would not mind me saying that she's tiny but powerful  -- and certainly she is an articulate spokesperson for the issues her country, with a total popularion of 6.8 million, is facing.

Professor Caceras Mongelos has served as a spokesperson for her civil society organization during regional meetings for Latin America and the Caribbean in 2012 and 2013 that led to endorsment of a formal international convention on the rights of older persons. 

The participation of Paraguay in international discussions of aging is forward-thinking, as it is actually a comparatively young country in terms of its overall population.  Persons aged 60 and over comprise approximately 8% of the population.  Recent news reports  indicate that more than 66% of its population is less than 30 years old.  At the same time, with their citizens already experiencing relatively long-life spans, especially on a comparative basis (average life span is now 75 according to some reports), the country will begin to see the impact of aging as a nation starting in 2038. 

The organization headed by Caceres Mongelos has adopted advocacy goals for its members, including health related goals, such as securing free health care (including mobile clinics) for retirees for critical matters such as vision and dental care, and for treatment of cancer and chronic diabetes, all issues recognized as important for the self-esteem of older persons.   Her Central Association has a project called "Hogares de Jubliados" or "Homes for the Elderly," with a goal of providing space for as many as 200 persons deemed vulnerable and unprotected.  Her organization seeks to "monitor and insure safekeeping of social security funds under control of the treasury" during the current fiscal crisis.  A better system of public transportation is another key goal.

She described her Central Association's recent Yellow Ribbon Campaign to re-enforce recognition of the rights of civil services and retirees to be free from pay discrimination under the Constitution of Paraguay.  She described the yellow ribbons as symbols for the "struggle to claim solidarity, love, better living and the light of hope for a bearable and dignified old age." Despite the small proportion of Paraguayans currently deemed older -- in their "third age" -- she said "fragility" often characterizes their life conditions, with more than a quarter of the population of older adults illiterate and with only 19% currently receiving any form of income from pension or retirement benefits. In addition, her association stresses that real attention must be paid to the needs of older persons in indigenous communities and Afro-descendants. 

In closing, Professor Caceres Mongelos called for an end to procrastination on international recognition of the rights of older persons.  She said,  "Declaring and implementing the regulations calling for dignity, equality and non-discrimination ... for older persons needs to be achieved as quickly as possible [toward] the goal of improving quality of life and respecting the human rights of older persons." 

July 22, 2014 in Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

No Hoarding in Apartments in Houston

Governing ran a story, Houston Passes What May Be the Nation’s First Anti-Hoarding Law. Here is what the law addresses:

After residents and homeowners’ associations there clamored for help, the city council recently passed new regulations allowing police to inspect apartments receiving hoarding complaints. The police may refer hoarders to mental health services and, as a last resort, charge them with a misdemeanor carrying daily fines up to $500.

The article notes the issues arising from hoarding,  "includ[ing] rats breeding, bedbugs, fleas and other unsanitary conditions." The article mentions the challenge for police in determining whether a case is one of hoarding. With enforcement starting in October, 2014, a number of city agencies are working to get ready:

Multiple city departments are now working through the details of just how the new law will be carried out. Police will enforce the ordinance. The health department might be called in to assess mold or other health concerns. Public works staff may evaluate the structural integrity of units weighed down by piles of junk. The Mental Health and Mental Retardation Authority of Harris County and other outside agencies will also be key players.... [I]f the initial law goes well, the city may look to broaden it to include single-family homes if adequate funding exists.

July 21, 2014 | Permalink | Comments (0) | TrackBack (0)

What Should You Look For In An Elder Law Attorney?

ElderLawGuy (and good friend) Jeff Marshall has a great blog post on "How to Find A Good Attorney for Older Adult Issues"  He knows whereof he speaks and starts off by explaining the important reasons for asking the right questions:

"Planning for senior issues like incapacity and long term care is an important aspect of the services provided by what have become known as “elder law attorneys.”  Unfortunately, in most states any lawyer can say he or she practices elder law or hold themselves out as being an “elder law attorney” even if the lawyer has little or no experience with the issues that are especially important to older adults. This means seniors must be particularly cautious in choosing a lawyer and carefully investigate the lawyer before hiring." 

Jeff explains the significance of "certification" as a specialist and how to assess "ratings" or particular approaches to planning, such as "life care planning."  The post is useful both for consumers and young attorneys thinking about how to build a respected career.  

July 21, 2014 in Consumer Information, Ethical Issues, Legal Practice/Practice Management, Weblogs | Permalink | Comments (0) | TrackBack (0)

Does Federal Medicaid Law Require Funding for Assisted Living?

Leslie Frances, Associate Dean for Faculty Research Development at University of Utah Law, has an interesting post on the Health Law Prof Blog about challenges to states that have failed to provided Medicaid coverage for needs of residents in "assisted living," as opposed to "skilled nursing" care settings.  Here are two such cases she describes:

First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds.  The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase.  The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014.  The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).”  Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished).  Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard.  Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.

 

Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs.  Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services.  The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it.  Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014). 

My own state of Pennsylvania is one of the states that has, in theory, obtained approval from HHS to use Medicaid in assisted living facilities, but even after several years, funding has not been implemented.  Across the state line in New Jersey, low income/asset residents in assisted living are eligible to apply for Medicaid. 

July 21, 2014 in Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0) | TrackBack (0)

Sunday, July 20, 2014

AALS Joint Session with Medicine, Health Care and Aging: Call for Papers

Per the post from The Faculty Lounge by Dan Filler:

The AALS Sections on Aging and the Law and on Law, Medicine, and Health Care are sponsoring a joint program at the January 2015 Annual Meeting. The program will consider many of the issues faced by elders, doctors, and the health care and social services systems when making medical treatment decisions for those incapacitated patients and residents who have no reasonably available legally authorized decision maker.....

 

Please submit your paper or proposal by Friday, August 31, 2014 at 5:00 p.m. Please send it BOTH to Mark Bauer (Chair, AALS Section on Aging and the Law), Stetson University College of Law, mbauer at law.stetson.edu; and to Thaddeus Pope (Chair-Elect, Section on Law, Medicine, and Health Care), Hamline University School of Law, tpope01 at hamline.edu

More details here at The Faculty Lounge.

July 20, 2014 in Programs/CLEs | Permalink | Comments (0) | TrackBack (0)

17th Annual Elder Law Institute in Pennsylvania: Packed Program on July 24-25

The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25.  In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):

  • Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
  • North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
  • We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
  • Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts."  By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.

Be there or be square!  (Who said that first, anyway?)     

July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

A Cartoon for Friday

Elder Law Prof guru and friend Dick Kaplan sent the link to this cartoon.  Check it out.

July 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Seeking Death with Dignity ... for a Beloved, Aging Pet

The story of Kitty Lee, age 75, and her beloved border collie Zoe, age 18, captures so much that can be poignant about aging.  From the Albuquerque Journal, in a story by Joline Gutierrez Krueger:

"For months, Lee knew it was time to say goodbye to Zoe, her constant companion since 1999. The tumor had gotten so big, and Zoe had gotten so weak. Her gentle brown eyes were clouding over. She couldn’t hear. It wasn’t fair to force her to live this way just for Lee’s sake.

 

“She deserves better than this,” said Lee, 75. “She deserves to die with dignity.”

 

But dignity is hard to pay for.... Today, Lee lives on a monthly $800 Social Security check, just enough to pay for groceries, bills and rent for the broken-down RV parked in a West Central [Albuquerque, New Mexico] trailer court."

The costs and procedures for euthanasia for the suffering collie were more than Lee could handle alone. Plus, she did not want to simply abandon the decision to others; she wanted to be part of a safe and humane process for Zoe.  The Albuquerque Journal writer's first news story resulted in donations and offers of assistance. Eventually, Lee's collie "died peacefully and with dignity in her woman's arms." 

I suspect if you have read this far, you too might have a tear in your eye.  The full story is here

July 18, 2014 in Advance Directives/End-of-Life, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Shared Housing as a Viable Option for Elders

The NY Times ran an interesting story on July 11, 2014 on shared housing and various initiatives.  Looking for a Housemate, Not a Mate, in Later Life is a story about "shared living arrangements".   The article references a Census Bureau report that notes an uptick in the number of women age 65 and above living alone.

[W]omen are increasingly looking for alternatives to living alone, said Rachel Caraviello, a gerontologist and vice president for programs and services at Affordable Living for the Aging in Los Angeles...With housing costs typically a third or more of living expenses for people 55 and older, the desire to share living space is often driven by economics.

It is not only about economics (since shared housing can mean shared expenses) but "the desire for companionship or the sense of security derived from having a housemate — especially these days, when family members are often far apart."  The article quotes Billie Campbell, senior program manager of the Thomas Jefferson Planning District Commission in Charlottesville, Va.: "[multigenerations used to live together... [h]ouses have gotten bigger but households have gotten smaller.” Thus, for those who don't want to relocate, a housemate may be the solution. This also provides the homeowner with the ability to stay in his or her community, the article notes.

The article stresses the importance of roommate compatibility and suggests references and background checks for starters, as well as matters to be addressed in the agreement.  I would also like to suggest the value of talking to an elder law attorney and having the attorney draw up the agreement.

July 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Evolution of Human Rights for Older Persons: Preparation for UN Open-Ended Working Group on Ageing, July 30-Aug.1

On July 30-August 1, the United Nation's Fifth Working Session of the Open-ended Working Group on Ageing will be held in New York City.   Established by the U.N. General Assembly in 2010, the working group's task is to "consider the existing international framework of the human rights of older persons and identify possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures."

One potential result of this process is to frame and seek approval for a Convention (Treaty) on the Rights of Older Persons, a process which was used successfully, for example, with the U.N.'s Convention on the Rights of Persons with Disabilities (CRPD)

The question of a Convention on rights of older persons was a hot topic during the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago.  A number of participants and observers described key moments leading to the present status on international recognition of the rights of older people.  Several commented on the prospects for eventual passage of a Convention. Listening to multiple perspective was an educational experience for those not yet steeped in the world of international law and ageing policy and I'll do my best here to provide a concise overview from my notes at the Conference.

Professor Israel ("Issy") Doron from the University of Haifa, a keynote speaker with long experience specifically focused on international human rights for older persons, described the journey that began in the mid-1970s.  The first steps led to a first World Assembly on Ageing in 1982. Known as the Vienna Assembly, the body issued a report with 62 recommendations for action (VIPAA 1982), a report that was unanimously approved by the 124 (then) member states in the United Nations.  Optimism was in the air.  Twenty years later, and with several more intervening gatherings to discuss or focus on international ageing rights, there was a Second World Assembly on Ageing in Madrid and a corresponding report (MIPAA 2002).

Professor Doron rexcognized that this extended timeline can be frustrating for some human rights advocates.  Nonetheless, he explained that these steps were important parts of the journey, moving from concern, to concept, to "soft soft law," to "soft law."  A Convention or treaty would be "hard law," and thus perhaps also a hard sell, at least for some nations, including the United States.  The U.S. has a history of resistence to becoming bound by international laws affecting what it views as "domestic" concerns, even if the U.S. often participates in international drafting.

There are lessons to be learned about the journeys taken by advocates for other human rights instruments.  Professor Gerard Quinn from National University of Ireland Galway drew upon the experience of framing the Convention on disability rights, to demonstrate the need to build alliances and to establish a clear reason for an instrument applied to a specific group, such as older persons. National laws can provide models and their existence may help to build support; for example, U.S. law on disability rights paved the way for a key section of the CRPD that recognizes the rights of disabled persons to reasonable accommodations. 

Professor Quinn noted a concern that "thematic" treaties may be seen, wrongly, as standing in isolation, rather than as a component of the human rights structure as a whole.  Thus, it may be important to show how specific international law is necessary to tackle the problem of "invisibility" of affected individuals.  Advocates for a Convention on ageing should also be realistic about the potential for a dichotomy in goals, as where some may emphasize promotion of "autonomy" of individuals while others focus on "protection," a tension that was present during framing of the CRPD.

One of the historical details for the CRPD, that I had failed to appreciate until hearing Professor Quinn, was what he described as "situational support" coming from potentially surprising sources.  He described important support for the CRPD provided by Ireland's Mary Robinson and Mexico's Vicente Fox, with the latter making disability rights a major feature of his campaign for president of Mexico. Who will emerge as key supporters for rights of older persons?

Another important perspective on a Convention on Rights for Older People came from Ervin Nina, Counselor at the Permanent Mission of Albania to the UN, where one of his roles was as Vice Chair of the Open-ended Working Group on Ageing from 2011-2014.  He explained the history of U.N. Resolution 67/139 ("Towards a Comprehensive and Integral International Legal Instrument to Promote and Protect the Rights and Dignity of Older Persons") adopted by the UN General Assembly in December 2012.  Despite "passage" of this resolution that expressly mandates renewed consideration of an international legal instrument, 118 member states abstained from the vote.  Thus the low number of states actually voting in favor of the resolution signaled low support for movement forward on a Convention on the Rights of Older Persons. 

The final keynote speaker was Eilionoir Flynn, Deputy Director of the Centre for Disability Law and Policy and Senior Lecturer at the School of Law at National University of Ireland Galway.  The very articulate Dr.  Flynn addressed the challenge of moving forward, including using the upcoming 5th session of the Open-ended Working Group on Ageing as an opportunity to regain and drive momentum. She urged that civil society organizations, who have seats at the table in New York, need to work together to identify goals and reach consensus, and thus to build working alliances for drafting and passage.

During the Chicago conference, several speakers noted that one potential ally -- or stumbling block -- to adoption of a formal Convention on the Rights of Older Persons may exist in the person of the United Nation's newly appointed "Independent Expert on Older Persons' Rights," Rosa Kornfeld-Matte from Chile.  On the one hand, Ms. Kornfeld-Matte, appointed by the U.N. Human Rights Council on May 8, and someone with deep experience in ageing issues, has the potential to be a catalyst for true change, including adoption of "hard" international law. However, there is also the potential for international momentum to wane while waiting for the "expert's" investigation and recommendations.

Where to go from here?  One of the unique features of the Chicago conference was the decision of the host, John Marshall Law School, to open a deliberative process of its own.  Beginning in the early spring of 2014, many of the participants in the conference met with faculty and staff at the law school via email, video conference and telephone, to create a working template of a "Chicago Declaration on the Rights of Older Persons."  During the two- day meeting in July, drafting sessions were held in parallel to the speaker presentations, organized into five subject matter groups that examined each element of the working template.  The advantage of this approach was to give not just a few U.S. professors a hands-on opportunity to participate, but to obtain input and review from a wide range of faculty, lawyers, social workers, public officials, advocates and interested organizations from more than 15 countries.  At the close of the conference on July 11 we learned that the finalized "Chicago Declaration" (by then in its 10th iteration) will be presented on August 1 at the 5th Session of the Open-ended Working Group on Ageing in New York.  Check the John Marshall Law School website for updates on the final version.  2014 International Elder Law and Policy Conference, Chicago Declaration

From my perspective as a comparative "newbie" to international human rights drafting, the Chicago Declaration was an impressive and comprehensive undertaking.  It was also a lesson in building consensus and making strategic choices, such as whether to emphasize rights of autonomy or balance that focus with concern about protection for older persons.  As one speaker commented, it was an excellent example of engagement, drawing upon academic research skills and international scholarship to tackle real issues in the real world.

July 17, 2014 in Other | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

What's in a Name? NPR story

NPR ran a story about their survey, NPR Survey Reveals Despised And Acceptable Terms For Aging. As a follow up to a story on what to call us as we age, NPR did a survey of listeners. The story includes segments of the initial story and discussed the survey results, with "more than 2,700 people responded, and the winner and still champion was older adult, though you can't say there was any real enthusiasm for it among our poll takers. Just 43 percent of them said they liked it." What about other options? We all have heard the terms elder, senior, or senior citizen used (as well as some less kindly words). The survey showed that nearly "a third of the respondents liked elder. [with] a lot of comments online from people who felt that the term was the most respectful. And about a third thought senior was fine, though if you put the word citizen after it, the favorable rating dropped to less than 12 percent."  The article goes on to discuss the less kindly words used to refer to older persons and concludes

in another poll earlier this month, the more scientific poll than ours - that poll found that nearly three quarters of baby boomers plan to continue working during their so-called retirement years, which may mean that the word retirement is also on its way out. The point is we're getting rid of a lot of these traditional terms for aging, but we haven't come up with anything to replace them that reflects what life is like now.

July 16, 2014 | Permalink | Comments (0) | TrackBack (0)

NYT: New York Lawsuit Challenges Cuts to Medicaid-Home Care Coverage

From the New York Times on July 16, 2014,  this news of a class action lawsuit challenging dramatic cuts in Medicaid funding for home care: 

"A federal class action lawsuit filed late Tuesday accuses New York State health officials of denying or slashing Medicaid home care services to chronically ill and disabled people without proper notice, the chance to appeal or even an explanation, protections required by law.

 

The lawsuit, filed in United States District Court for the Southern District of New York, names three plaintiffs: an impaired 84-year-old woman living alone in Manhattan, a frail 18-year-old Brooklyn man with severe congenital disabilities, and a 65-year-old Manhattan man with diabetes and a schizoaffective disorder. But it was brought by the New York Legal Assistance Group on behalf of tens of thousands of disabled Medicaid beneficiaries who need home health care or help with daily tasks like bathing and eating."

For the full New York Times article, see Nina Bernstein on "Medicaid Home Care Cuts are Unjust, Lawsuit Says."

July 16, 2014 in Federal Cases, Health Care/Long Term Care, Medicaid | Permalink | Comments (0) | TrackBack (0)

Significant Statistics on Drop (yes, drop!) in Alzheimer's Incidence in US

From McKnight's comes this interesting report on new statistical information on Alzheimer's:

"The odds of developing Alzheimer's disease fell sharply among seniors in the United States over the last 30 years, according to research presented Tuesday at the Alzheimer's Association International Conference in Copenhagen. The finding casts a new light on prior estimates that the number of people needing long-term care will triple by 2050, largely due to Alzheimer's."

For a more complete report on the Conference, see McKnight's piece "Chance of a senior developing Alzheimer's has dropped 44% over the last three decades, large U.S. study shows."

July 16, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)