Wednesday, July 29, 2015
Sally Hurme, J.D., adds another useful book to her long list of consumer-friendly publications. In Checklist for Family Caregivers, published and marketed jointly by AARP and the American Bar Association, offers "to do" and "action" checklists to guide family members as key providers of care and assistance for seniors. Each topic is introduced by brief narratives of explanation, often with an emphasis on legal implications of decision-making. For example Chapter 6 is on "Deciphering Contracts," and describes different components of family caregiver agreements, home care service agreements (whether directly or through an agency), assisted living agreements, and skilled nursing care contracts, plus a few points about long-term care insurance policies.
Think of this book as the starting place -- and a wonderful opportunity to organize thoughts for meetings with doctors, agencies, social workers or lawyers. More information about the book is available on the ABA webpages (with a member discount, and "bulk discounts are available"), on AARP's webpage, or directly through Amazon.
Tuesday, July 28, 2015
Twenty-five years ago, through the Americans with Disabilities Act (ADA), our nation committed itself to eliminating discrimination against people with disabilities. The U.S. Department of Justice’s Civil Rights Division is proud to play a critical role in enforcing the ADA, working towards a future in which all the doors are open to equality of opportunity, full participation, independent living, integration and economic self-sufficiency for persons with disabilities. In honor of the 25th anniversary of the ADA, each month the Department of Justice will spotlight efforts that are opening gateways to full participation and opportunity for people with disabilities.
The efforts that are spotlighted can be accessed here. Concomitant with the anniversary, the Social Security Administration's July 27, 2015 blog, Supporting the Americans with Disabilities Act, focused on the ADA's anniversary.
There were a number of articles highlighting the ADA's anniversary. For example, the New York Times ran a Room for Debate on the ADA, The Americans With Disabilities Act, 25 Years Later. NPR did a story on the ADA's influence on other countries, How A Law To Protect Disabled Americans Became Imitated Around The World and the Washington Post ran an article by Professor Robert L. Burgdorf Jr., Why I Wrote the Americans with Disabilities Act. President Obama spoke about the anniversary of the ADA and the White House website has a page devoted to issues facing Americans with disabilities.
If you cover the ADA in your classes, there are many more useful articles and stories released as a result of the ADA's 25th anniversary.
I'm visiting family in the Southwest as I type this entry. To say that I come from a family of pack rat readers is an understatement. Every room in my parents' three story old house has stashes of books, even the bathrooms. In one room, I think the bed is entirely supported by books stacked neatly underneath it. (And this is a looooong family tradition; I can remember vacations in Wisconsin where the prized activity was digging through old books and ancient Saturday Evening Posts in a cousin's attic, to find the perfect text for reading on the screened- in porch on a rainy summer day).
This week's discovery was an article in the Winter issue of the Journal of the Southwest, a refereed journal published quarterly at the University of Arizona. "The Eclipse of the Century," tells the story of married scientists Cecile DeWitt-Morette and Bryce Seligman Dewitt, who pursued greater understanding of Einstein's theory of relativity. A goal was to observe one of the longest total eclipses of the sun, taking the highest-quality possible photographs in order to measure and document "bending" of light caused by the pull of gravity. The opening paragraph of the article by University of Texas PhD candidate David Conrad hooked me:
Cécile DeWitt-Morette sat on a roof in a sandstorm in the Sahara Desert. It was 10:30 a.m. on June 30, 1973, and nearly 100 degrees Fahrenheit. If the storm did not let up soon, all was lost. A year and a half of preparation and approximately $100,000 in grants would be for naught, and a similar opportunity would not come for another 18 years. But Cécile had no power over the wind or sand or time. She could only wait. Beneath her feet, inside the structure she and her colleagues from the University of Texas (UT) McDonald Observatory built, her husband Bryce DeWitt—head of the expedition—and five other men waited for the storm to abate. The clock ticked off the seconds, and still the sand blew. All the money and effort spent to send these people here, to the oasis of Chinguetti in the Islamic Republic of Mauritania, could not alter the forces of nature.
You may be asking, "How on earth is this a topic for the Elder Law Prof Blog," right? The answer comes from the fascinating start to UT's decision to develop a top-flight team of academic researchers. It began with a "will." The article continues...
Professor Cynthia Bond at John Marshall Law is doing a survey on how law profs use pop culture in their classrooms. Here is her email providing more info and requesting responses to her survey:
Greetings Law Teacher Colleagues:
I am working on an article this summer on uses of popular culture in the law school classroom. I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area. If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
The John Marshall Law School
Monday, July 27, 2015
Law Reform: A Proposed Remedy for "Deeply Toxic" Damage to Higher Ed Caused by Abolition of Mandatory Retirement
Bentley University Professors Beverley Earle and Marianne Delbo Kulow have a nicely provocative article in the Spring 2015 issue of the Southern California Interdisciplinary Law Journal, titled The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair. From the introduction:
There are very few positions that offer the level of protection that tenure does. One such position is a federal judgeship, which is distinguishable because of the very public nature of the work. If a judge performs inadequately, community backlash may quickly develop that could usher in a publicly coerced retirement. For example, a state judge, who recently gave a lenient sentence to a convicted rapist of a minor who committed suicide, has announced his retirement following pubic outrage.Tenured faculty members, unlike judges, labor in the relative isolation of the classroom, where feedback comes at the end of the semester and then only via student evaluations. This creates the first of two problems for higher education in the United States stemming from the abolition of mandatory retirement: the difficulty of removing a tenured professor for poor performance.
In most universities, only egregiously poor performance by a tenured professor is flagged for termination; outdated, boring, or barely adequate, teaching may not sufficiently stand out to warrant a more intense review. There is also a slow feedback loopdue to minimal, if any, post-tenure peer classroom evaluations and skepticism about student evaluations of teaching. Therefore, often many semesters pass before there is sufficient evidence to persuade a professor or her superiors that the tenured professor's employment status should be reevaluated. Inadequacies in scholarship can be even more difficult to discern, given the common time lag between research and publication, as well as the variations between disciplines in frequency, length, and format of publications.
The second distinct challenge faced by higher education caused by the coupling of the abolition of mandatory retirement with the institution of tenure is the prospect of stagnant departments: no new faculty may be hired because there are no vacancies....
The authors' proposed reforms include "expiration" of tenure for professors reaching age 70, while permitting continued employment opportunities on the same evaluative standards as non-tenured faculty.
Sunday, July 26, 2015
Many common nursing home practices are, in fact, illegal. In order to receive the best possible quality of care, a resident or resident’s family member should be familiar with the protections of the federal Nursing Home Reform Law, and understand how to use the law effectively.
This free webinar, with Directing Attorney Eric Carlson, will detail the most common problems that crop up—from evictions to excessive medication—and provide practical, clear tips to help family members and advocates navigate solutions.
This webinar complements the re-release of an updated version of our popular guide, 20 Common Nursing Home Problems and How to Resolve Them. Look for it on our website starting on Thursday, July 23, 2015.
The webinar is set for August 4, 2015 at 2 p.m. EDT. To register, click here.
With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read. I've got one to recommend, too. It's Dry Bones in the Valley by Tom Bouman.
The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking. One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:
I knew I wouldn't sleep and likely shouldn't with my head the way it was. Went back inside, got out my fiddle, and rosined the bow....
I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe. I thought of George Ellis. Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.
It's not hard to get up if you never go down. Dawn brought a hint that the weather might get clearer. With enough pain pills, my head would too. The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove. The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist. Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out. It was the first songbird I'd heard that spring....
Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog? Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.
Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller.
Friday, July 24, 2015
From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:
The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.
“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”
The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades." Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.
July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)
Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN. In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age. This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:
Elder abuse is a major international problem, and scandal. It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it. Elder abuse occurs in a variety of ways. It can be physical abuse due to either active injury or passive neglect. It can be psychological abuse through fear and intimidation. It can be financial abuse due to theft or fraud. Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives. Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.
While all elders can be abused, those with mental illness are particularly vulnerable. This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia. Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.
This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse. It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.
The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.
On July 22, 2015 the Social Security Trustees issued its annual report about the Social Security Trust funds. According to the press release, the good news overall is SSA gained a year in solvency. The bad news, the disability insurance trust fund reserve runs out of money next year.
The combined asset reserves of the Old-Age and Survivors Insurance, and Disability Insurance (OASDI) Trust Funds are projected to become depleted in 2034, one year later than projected last year, with 79 percent of benefits payable at that time. The DI Trust Fund reserve will become depleted in 2016, unchanged from last year’s estimate, with 81 percent of benefits still payable.
In the press release, Acting Commissioner Carolyn W. Colvin addressed the DI Trust Fund issue:
While the projected depletion date of the combined OASDI trust funds gained a year, the Disability Insurance Trust Fund's projected depletion year remains 2016. I agree with President Obama, we have to keep Social Security strong, protecting its future solvency. President Obama's FY 2016 budget proposes to address this near-term Disability Insurance Trust Fund's reserve depletion. By reallocating a portion of payroll taxes from Old Age Survivors to the Disability Trust Fund - as has been done many times in the past - would have no adverse effect on the solvency of the overall Social Security program....
The full report The 2015 Annual Report of the Board of Trustees of the Federal Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds is available as a pdf here.
The Medicare Trustees report was also released on July 22, 2015. The news from Medicare was slightly better, with the trust fund solvency still in place through 2030.
[T]he Medicare Trustees projected that the trust fund that finances Medicare’s hospital insurance coverage will remain solvent until 2030, unchanged from last year, but with an improved long-term outlook from last year's report. Under this year’s projection, the trust fund will remain solvent 13 years longer than the Trustees projected in 2009, before the passage of the Affordable Care Act.
However, the press release notes an anticipated increase in Medicare Part B premiums for next year:
[A]pproximately 70 percent of beneficiaries are expected not to see a premium increase in 2016 because it is projected that there will be no cost-of-living increases in Social Security benefits. The remaining 30 percent of beneficiaries would pay a higher premium based on this projection. These include only individuals who enroll in Part B for the first time in 2016; enrollees who do not receive a Social Security benefit; beneficiaries that are directly billed for their Part B premium; and current enrollees who pay an income related higher premium. Decisions about premium changes will be made in October and depend on a variety of factors.
Thursday, July 23, 2015
As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada. In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.
The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county. Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations.
The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail. Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:
- LasVegasReviewJournal - Editorial-Clark County Adult Guardianship Program Must Better Protect Wards 7/21/15
As part of the 2015 White House Conference on Aging, HHS posted a blog entry announcing the launch of a new website, aging.gov. According to the blog post from Nora Super, executive director of the WHCOA, "[o]ne of the lessons we learned through this journey is that older Americans, their families and other caregivers sometimes need help navigating the array of federal, state and local supports that are available." The website includes information on healthy aging, retirement security, and elder justice as well as links to various resources. Check it out!
Wednesday, July 22, 2015
The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia. The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.
The guide warns that failure to "meet the needs of a vulnerable client" may trigger:
- A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
- A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
- A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
- Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.
The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:
The Associated Press and the NORC Center for Public Affairs Research are doing a series of polls on Americans' experiences and views of long-term care. As described on the website, the AP-NORC "is undertaking a series of major studies on the public’s experiences with, and opinions and attitudes about, long-term care in the United States."
Demographic projections show the population age 65 and over nearly doubling by the time the last baby boomers have reached 65. Specifically, while seniors made up only 12 percent of the U.S. population in 2000, they are expected to comprise about 22 percent by 2040, with roughly 82 million Americans over the age of 65. How to plan for and finance high quality long-term care will remain a key policy question for lawmakers in the years to come.
The AP-NORC Center, with funding from the SCAN Foundation, is conducting annual nationally representative surveys of Americans age 40 and older to monitor a series of long-term care issues. Future studies will continue to examine awareness of older Americans' understanding of the long-term care system, their perceptions and misperceptions regarding the likelihood of needing long-term care services and the cost of those services, and their attitudes and behaviors regarding planning for long-term care.
The results from 5 polls, ranging from 2013 to 2015 can be accessed here. The most recent poll, conducted in April-May, 2015, focuses on Long-Term Care in America: Americans’ Outlook and Planning for Future Care which "explores new issues, including person-centered care experiences, the role of private health insurance plans in financing long-term care, and the special challenges faced by those who provide ongoing living assistance to elderly loved ones while also providing financial support to children. At the same time, the survey continues to track long-term care attitudes and planning behaviors." A quick take away summary from this
Five Things You Should Know From The AP-NORC Center’s Long-Term Care Poll Among adults age 40 and older:
- Nearly 1 in 10 are both supporting a child and providing ongoing living assistance for a loved one.
- Only a third say they are very or extremely confident in their ability to pay for ongoing living assistance they may need in the future.
- 54 percent report doing little or no planning for these needs.
- 1 in 5 do not know if private health insurance plans cover ongoing care in a nursing home, and over a quarter do not know if Medicare does.
- Majorities support a variety of policy options that would help Americans finance long-term care.
Tuesday, July 21, 2015
A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:
- What is dementia?
- Getting a diagnosis
- Adjusting to the news: for carers
- Adjusting to the news: for people with dementia
- What are friends for?
- Managing care at home
- Disturbing Behaviours
- Your dementia-friendly home
- What you should expect from the social care system
- What you should expect from the NHS
- The dangers of a hospital admission and how to avoid them
- Some important legal issues
- What to look for in a care home
- Advice on complaints and sample letter
I wonder how Chapters 9 and 10 would be written from a U.S. perspective?
July 21, 2015 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)
Monday, July 20, 2015
The Administration for Community Living (ACL)/Administration on Aging (AoA) announced an upcoming webinar, People Who Live Alone with Dementia. The webinar is offered by the National Alzheimer’s and Dementia Resource Center (formerly the ADSSP National Resource Center). The website describes this July 30th webinar as follows:
The webinar will focus on the issue of Persons Living Alone with Dementia. Participants will learn about prevalence and characteristics of people with dementia who live alone, signs of self-neglect and intervention strategies, and the experiences of people with dementia who live alone. Dr. Penny Harris and Dr. Michael Lepore will present at this webinar.
The webinar starts at 3 p.m. edt and lasts for one hour. To register for this free webinar, click here.
A good piece from the New York Times' Paula Span (and her always relevant New Old Age Blog), HIPAA's Use as Code of Silence Often Misinterprets the Law:
How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:
■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.
Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog? Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.
“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”
Ms. Span has reported on HIPAA problems before in her column and she tracks attempts to find solutions that balance the needs for privacy with communication that would be helpful.
Another common complaint about Hipaa enforcement, by the way, is the lack of access to patients’ own health records, which they have a right to see or copy, though providers can charge copying fees.
Within families, decisions about how much health information to share, and with whom, often become complicated, as a recent study in JAMA Internal Medicine found. When researchers working to design online patient portals convened two sets of focus groups — one for people over age 75, another for family caregivers — they heard the usual tension between older adults’ need for assistance and their desire for autonomy.
“Seniors say, ‘I don’t want to burden my kids with my medical issues,’ ” said Bradley Crotty, the director of patient portals at Beth Israel Deaconess Medical Center in Boston and the study’s lead author. “And the family is saying, ‘I’m already worried. Not knowing is the burden.’ ”
My thanks to my colleague Professor Laurel Terry for sharing this piece.
Marquette Law Professor Paul Secunda always has interesting perspectives, and that is again true with his recent article, The Behavioral Economic Case for Paternalistic Workplace Retirement Plans, to be published in an upcoming issue of the Indiana Law Journal. From his SSRN abstract:
Dependence on 401(k) retirement accounts continues to cause a massive retirement crisis in the United States by leaving most workers unprepared for retirement. The voluntary, inaccessible, employer-centered, expensive, and consumer-driven nature of these plans has combined to make retirement a type of corporate-inspired elder abuse in America.
Behavioral economics considers the utility of permitting individual choice in decision-making settings. Many, however, have been misled to believe that more choice is always better. Yet, according to one prominent commentator, this consumer-driven paradigm will lead to forty-eight percent of current workers between the ages of fifty and sixty-four being poor when they reach retirement. Behavioral economic workplace research instead strongly suggests that a better approach would be to use “choice architecture” to nudge workers into well-diversified, low-fee default retirement accounts set up by government-regulated private retirement funds.
Such a successful paternalistic workplace retirement model already exists. The Australian Superannuation Guarantee is a mandatory, universal, private, and comparatively inexpensive workplace retirement scheme. It also aligns the interests of retirement fund managers with fund participants. Most Australian employees do not exercise choice with regard to how their retirement contributions are invested. Employer contributions default into an individual’s MySuper retirement account operated by the country’s best money managers, who invest worker funds in a diversified manner, while charging very low investment fees.
As part of my Stewart Lecture remarks, I outline here a vision for the transformation of the American 401(k) retirement system into an efficient and sustainable superannuation model based on behavioral economic insights from the Australian workplace retirement system.
Professor Alexander Boni-Saenz at Chicago-Kent College of Law recently emailed me about his forthcoming article, Sexuality and Incapacity. The article is posted to his SSRN page and will be published in volume 76 of the Ohio State Law Journal. The abstract explains
Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities. These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs. However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity. This is despite the fact that they still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks. The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network. In other words, the right to sexual expression should not be withheld due to cognitive impairment alone. To justify this claim, the Article provides a theory of sexual incapacity doctrine that is grounded in the practice of supported decision-making and the normative foundations of sexual capability and relational autonomy. The Article then sets forth a novel test for sexual consent capacity: cognition-plus. This test focuses on gauging the capacity for volition, assessing the mental capacity of the individual to understand the nature and consequences of the sexual decision, and evaluating the adequacy of the decision-making support system using principles of fiduciary law. The Article concludes by applying the cognition-plus test to the case of older adults with dementia, a group of increasing importance with the aging of the population.
A draft of the paper is available as a pdf from the SSRN page of Professor Boni-Saenz. Thanks to Professor Boni-Saenz for letting me know about his article!
Friday, July 17, 2015
On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement. From its introduction to the ruling in consolidated civil qui tam suits:
If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.
According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements.
Additional history -- and predicting clarifications -- about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule." For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."