Monday, December 22, 2014

The Need for Granny Pads vs. "Parochial" Land Use Concerns

The amazing things you find when you start cleaning your office!  Here's a find.  Notre Dame Law Professors Margaret Brinig and Nichole Stelle Garnett wrote a great piece for The Urban Lawyer on what are sometimes called "granny pads," or more formally, "accessory dwelling units."  The authors track reform measures enacted in at least 12 states that either enable or mandate authority for such units, thus preventing local building or zoning limitations from restricting landowners to "one unit" per lot.  Additional reforms have occured at some municipal levels.  They point to experiences in California as a cautionary tale, however, suggesting that "local parochialism remains alive and well in American zoning codes, often buried in regulatory details that escape the attention of advocates and academics alike."

Here's a link to the full article, "A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism."    I'm embarrassed to admit this particular journal issue was on the 2013 level of my cleaning efforts.  Who knows what other gems may be hiding!

December 22, 2014 in Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Saturday, December 20, 2014

"Smart Talk" about Guardianships, POAs, Elder Abuse & Access to Justice in the Courts

Here is a link to a podcast for a Smart Talk program from WITF Public Radio, where Zygmont Pines, Esq., Court Administrator for the Commonwealth of Pennsylvania and I were invited to talk about quite a few "hot" topics from Pennsylvania Supreme Court's Elder Law Task Force.  The Task Force released its big Report and Recommendations last month. 

The topics strike me as quite universal, not Pennsylvania specific.  If you make it to the last few minutes (or skip ahead), there is an especially poignant moment with a family caregiver, who tells a real life story that will strike a chord with many. 

 

 

December 20, 2014 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Friday, December 19, 2014

Is Your Job Good for Your Brain?

The journal Neurology, ran an article about a recent study on the impact occupations have on workers' brains.  Occupational complexity and lifetime cognitive abilities opens with a recognition that "[t]here is a growing body of research suggesting that more stimulating lifestyles, including more complex work environments, are associated with better cognitive outcomes in later life." (citations omitted).

In the discussion, the authors note that "[t]he ... findings support the hypothesis that higher complexity of work is associated with later-life cognitive performance...."  After discussing the specifics of the study, the authors offer this summary "the current study  supports an association between more complex lifetime occupations and better cognitive abilities in later life. Of note, the evidence in favor of the differential preservation of cognitive abilities has been examined in the context of accounting for the likelihood of persevered differentiation, a major issue in the search for determinants of cognitive aging."

The full text of the article is available here.

December 19, 2014 in Cognitive Impairment | Permalink | Comments (0) | TrackBack (0)

Pennsylvanians Face New Requirements for Effective POAs Written in 2015

Starting on January 1, 2015, Pennsylvanians have new rules that apply in order to create effective Powers of Attorney (POAs).  The changes are wrought by Act 95 of 2014, and were stimulated in large part by a case decided in 2010 that invalidated a POA that had been executed under suspicious circumstances.  We discussed the background here.

There are important, and sometimes subtle options for principals to consider in accepting or rejecting the "default rules" in the Act.  All of the changes were intended to provide better protections for principals from abuse by agents, but not all principals will want those protections, particularly if it means more risk of third-party intervention or oversight.  For an up-to-date and thoughtful summary of the changes and implications, read ElderLawGuy Jeff Marshall's recent blog post on "What You Need to Know."

For attorneys seeking the latest information on POA drafting and best practices, the Pennsylvania Bar Institute is offering several CLE programs around the state in January 2015.

December 19, 2014 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Looking for a Movie or Book this Season? Don't Shy Away From These....

New York Times Op-Ed Columnist Frank Bruni recalls his own reluctance to confront the realities of Alzheimer's, offering a touching account of his own grandmother many years ago, whose condition caused him to turn away.  But as he also points out in his column, "Confronting an Ugly Killer," "the world is different now.  Much of the unwarranted shame surrounding Alzheimer's has lifted. People are examining it with new candor and empathy."

As evidence for his observation, he points to the latest movie, Still Alice, with Oscar buzz already starting for Julianne Moore's performance.

As further evidence, he lists the new documentary "Glenn Campbell: I'll Be Me" and a best selling, celebrated 2014 novel, "We Are Not Ourselves" by Matthew Tomas. 

December 19, 2014 in Books, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

Rural Vets Get Care via TeleMedicine

Reuters ran an interesting story last month about the use of telemedicine to deliver health care to rural vets. The story, For rural vets with PTSD, Telemedicine may help is based on a study published in the November, 2014 JAMA Psychiatry

The Reuters article explains a new study that shows using telephones and videochat can be helpful in the treatment of PTSD for these vets. This most recent study  "included 265 middle-aged vets with severe PTSD symptoms at one of the outpatient clinics without onsite psychiatrists or psychologists from 2009 through 2011.” Recruited from 3 different areas of the country, 50% of the vets “received the outpatient clinic’s ordinary care” while the remainder had access to “an additional care team at a larger medical center via telemedicine.”  This team included a variety of professionals, such as pharmacists and nurse care managers who called the vets, and video-chat consults with psychiatrists who subsequently provided “feedback and treatment recommendations to providers at the clinic through electronic medical records.” Video chat was also used by psychologists for “cognitive processing therapy, a specific behavioral therapy developed to treat PTSD…”

The story notes that the technology isn’t right for every vet, but a large number in the study were happy with it and that further research is needed to in order to determine the path to widespread use.

The JAMA article offers this conclusion “Telemedicine-based collaborative care can successfully engage rural veterans in evidence-based psychotherapy to improve PTSD outcomes.” The JAMA article abstract is available here, and the full article is available by subscription or purchase.

December 18, 2014 in Health Care/Long Term Care, Veterans | Permalink | Comments (0) | TrackBack (0)

CMS Invites Comments to Proposed Rule Recognizing Same-Sex Marriages

The Centers for Medicare and Medicaid Services (CMS) recently published a proposed rule that would make equal treatment for same-sex marriages (recognized under state law) a condition for all providers or suppliers seeking federal funding.  CMS also released interim guidance for long-term care surveyors, as part of the agency's implementation of the Supreme Court's decision in U.S. v. Windsor,

Comments to the prosed rule are due by February 10, 2015.  The National Senior Citizens Law Center provides additional information regarding its advocacy on this important topic, and on the proposed regulations and policies on its Center website, here.

December 18, 2014 in Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

New Papers from University of Michigan's Retirement Research Center

The University of Michigan's Retirement Research Center regularly releases working papers and policy pieces that explore issues relevant to lawyers and legal academics.  From MRRC's most recent news release, here are some interesting topics:

  • “Does Protecting Older Workers from Discrimination Make It Harder to Get Hired?” by David Neumark, Joanne Song and Patrick Button. Abstract
  • “Will They Take the Money and Work? An Empirical Analysis of People’s Willingness to Delay Claiming Social Security Benefits for a Lump Sum” by Raimond H. Maurer, Olivia S. Mitchell, Ralph Rogalla and Tatjana Schimetschek. Abstract
  • “Long-Run Determinants of Intergenerational Transfers” by John Karl Scholz, Ananth Seshadri and Kamil Sicinski. Abstract

On the last item, I was intrigued by the opening lines for the abstract: 

"Understanding whether the elderly are saving adequately is fundamental to understanding whether elderly households are able to maintain reasonable living standards. One factor that affects wealth accumulation is the extent to which parents need to support children and the extent to which children need to support parents. The presence of Social Security may affect intergenerational transfers, but the extent to which it ‘crowds out’ transfers from parents to children is controversial...."

For more studies from MRRC, you  can review the longer list of current publications and upcoming programs here. 

 

December 18, 2014 in Retirement | Permalink | TrackBack (0)

Wednesday, December 17, 2014

Might the U.S. Have Important Lessons to Learn from Cuba About Healthcare and Aging?

Having lived several years in Miami, I have long had a bit of fascination with the island nation of Cuba. So close, and yet so far away. While working in Ireland in 2010, my interest increased, as I learned more about modern-day Cuba from Dr. Una Lynch, a public health specialist, who had frequently traveled and worked in Cuba.  She gave a presentation that opened my eyes to Cuba's WHO statistics, its reputation for a "first world" health care system, and the positve outcomes on aging and longevity.  See here and here for more comparative discussions on Cuban health care.

It was a happy surprise for many to learn of the dramatic plans to restore diplomatic relations between the U.S. and Cuba.  At the same time, I suspect that some of my Cuban-American friends in Miami may be torn, especially as many of their families were forced to flee Havana years ago. One friend has akready reacted happily, commenting,  "This is a bold move and long overdue." Feliz aňo nuevo!

December 17, 2014 in Health Care/Long Term Care, International | Permalink | Comments (0) | TrackBack (0)

Congress Passes Federal ABLE Act to Help Funding for Persons with Disabilities

Reason for celebration.  Not only did Congress act, but it came together to help those with disabilities.  The Achieving a Better Life Experience (ABLE) Act cleared the Senate on Tuesday on a vote of 76 to 16, which is the last step on its way to the President.  As Gail Russell Chaddok of the Christian Science Monitor observes:

"But the reasons for its success go deeper and point to potential bipartisan paths forward on one of Congress’s most intractable issues: entitlement reform. The aim of the ABLE Act is to remove bureaucratic obstacles to help Americans save their own money to help pay for long-term care. To some activists, that could provide a template for reforming Medicare and Social Security in the next Congress.  

 

The ABLE Act helps people with disabilities save for college and retirement. Under current law, a child diagnosed with a disability can’t have assets worth more than $2,000 or earn more than $680 per month without forfeiting eligibility for government programs like Medicaid. The ABLE Act would allow a tax-free savings account up to $100,000 to pay for disability-related expenses."

 

December 17, 2014 in Current Affairs, Federal Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Stanford Releases New Study on Factors That May Affect Development of Alzhemier's

Researchers at Stanford Unviersity School of Medicine have released their latest study of brain cell degeneration in mice, suggesting the potential importance of blocking the influence of certain molecular processes associated with inflamation and Alzheimer's disease:

“'Microglia are the brain’s beat cops,' said Katrin Andreasson, MD, professor of neurology and neurological sciences and the study’s senior author. 'Our experiments show that keeping them on the right track counters memory loss and preserves healthy brain physiology.'”

Here is Stanford's new release, summarizing the study published this month in the Journal of Clinical Investigation.  Hat tip to Dickinson Law's Professor Laurel Terry for sharing this news.

December 17, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Science | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

Common Disability for Elder Americans

The Census Bureau released a report covering the survey results from the American Community Survey on the most common disability for elder Americans. Older Americans with a Disability: 2008-2012  was issued in December 2014. According to the article, almost 2/3 of elders with disabilities report a problem with mobility (e.g.,  climbing or walking). A graphic that shows the number of elders with a disability by county is also available.

The report concludes with several points, one of which is that "[t]he future of disability among older Americans will be affected by how this country prepares for and manages a complex array of demographic, fiscal, medical, technological, and other developments that will unfold in the next several decades." (citations omitted)

 

December 16, 2014 in Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Gettysburg Attorney Sentenced to 15 Years Plus $12+ Million in Restitution and Forfeiture

We reported earlier on the brazen attitude and extraodinary thefts by a Pennsylvania estate and long-term care planning attorney.  Wendy Weikal-Beauchat, age 47,  pled guilty to a series of crimes and on December 16, 2014 she was sentenced to 15 years in prison.  The sentencing judge ordered more than $6 million in restitution and the same amount in forefeitures.  In ordering her immediate surrender at the end of the hearing, U.S. District Judge John E. Jones III emphasized the betrayal of client trust that accompanied the now disbarred Gettysburg attorney's actions.

"Approximately 30 of Weikal-Beauchat's former clients attended the sentencing, 16 of which read statements to the court, the release states. Most emphasized the mental, as well as the financial, harm inflicted on them and their families by Weikal-Beauchat's fraud.

 

Weikal-Beauchat stole from clients who were members of the Great Depression and World War II generation and had undermined public trust in lawyers, said Judge John E. Jones III during sentencing. Jones said Weikal-beauchat's apology, which was presented in court for the first time Tuesday, was hollow, the release states."

Additional details from the Evening Sun news coverage are here.   

December 16, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)

A How-To Guide for Kids Caring for Their Parents

PBS NewsHour ran a story about suggestions for siblings who are providing care for their parents. A sibling’s guide to caring for aging parents by Bonnie Lawrence of the Family Caregiving Alliance offers a list of pointers as well as several tips. These range from planning, setting a family meeting, keeping respect in mind, the value of communication, and suggestions for consensus building,

 

December 16, 2014 in Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Did You Catch NPR's "Old and Overmedicated?" (Links and Updates Here)

Mark Friedman, an elder law and special needs attorney from New Jersey, recently wrote to comment on the important series offered by National Public Radio on use and misuse of certain medications in long-term care settings.  Here is what Mark said:

"NPR ran a story on 'chemical restraints,' - nursing homes using anti-psychotic drugs to make unruly residents more pliable. According to the article, the residents are usually Alzheimer’s or dementia patients, and anti-psychotics can make the residents easier for staff to manage. But the drugs can be dangerous, increasing a resident’s risk of falls and exacerbating health problems. At high doses, anti-psychotics can also sap away emotions and personality and put the resident into a 'stupor.'

 

Administering drugs in this manner, any drugs, including anti-psychotics, without medical need and for the convenience of staff, is contrary to federal regulations. Unfortunately, it may also be widespread.

 

The NPR story includes a tool drawn from CMS data that shows the rate of residents on anti-psychotics at nursing homes across the country. You can look up the facility in which your loved one resides.

 

The news coverage shows that this issue is getting increased attention, and that’s a good thing. I think that as Americans age and more people have spouses and parents in nursing homes, the use of anti-psychotics as chemical restraints will have to diminish or end. People won’t stand for their loved ones being drugged into a stupor."

Thanks, Mark, for making sure we included this topic and the latest links for more coverage and your additional commentary.  Along the same lines, I listened to an interesting follow-up conversation on AirTalk, a Los Angeles public radio affiliate's program, discussing "How California is Doing in the National Fight to Curb Over-Medication of Nursing Home Patients."  That program, now available as a 23-minute podcast, included an articulate medical professional, Dr. Karl Steinberg, who described how he sees medication practices changing in long-term care, including better use of behavior health techniques, rather than medication, to help residents.

Continue reading

December 16, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

Caregivers-It's A Role for Everyone

We have blogged on several occasions about family caregivers, and who in particular assumes the role of caregiver. Although some studies point to women as the caregivers, a new article shows that the caregiving role isn't just performed by women. Men as caregivers of the elderly: support for the contributions of sons was published in the Journal of Multidisciplinary Healthcare in November. According to the abstract

Emerging practice research on filial sources of health care support has indicated that there is a growing trend for sons to assume some responsibility for the health care needs of their aging parents. The purpose of this work is to propose that outcomes observed through a secondary analysis of data from a previous mixed methods research project, conducted with a sample of 60 elderly women residing in independent living centers, supports this concept in elder care. The present study is a retrospective interpretation utilizing the original database to examine the new question, “What specific roles do sons play in caregiving of their elderly mothers?” While daughters presently continue to emerge in existing health care studies as the primary care provider, there is a significant pattern in these data for older patients to depend upon sons for a variety of instrumental activities of daily living. As the baby-boomers age, there is more of cohort trend for their families to be smaller, adult daughters to be employed, and for adult children to be more geographically mobile. These factors may combine to make health care support networks more limited for the current aging population, challenging the elderly and their health care providers to revisit the cultural gender norms that are used to identify caregivers.

Professor Collins, the author of the article, opens the article with recognition that "[w]ithin the current context of an aging population, men can no longer be considered bystanders as caregivers to their aging parents.... [and that] [t]here is an emerging, yet largely unrecognized, societal trend for men to begin to fill the gaps as caregivers to community-dwelling elder parents." (citations omitted). Professor Collins cites some interesting statistics on the number of male caregivers and of those, how many are the sons of the elder.  The author goes on to examine how other reports on caregiving have analyzed the role of males as caregivers.  The author concludes that "[t]he findings of this study support the literature previously cited that suggests sons do contribute to the care of their elderly parents, particularly in the provision of IADL support." (citations omitted). A pdf of the full article is available here.

December 15, 2014 in Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Social Security Continues Debt Collections Against Family Members

The Washington Post has had several articles over the last two years, examining records of debt collection effforts and individual cases where "overpayments" are alleged by the Social Security Administration, leading to claims not just against the direct beneficiaries of the benefits, but also against family members.  Sometimes the claims are made many years after the alleged payments took place, making it hard for families to understand the basis of the claims or to defend against the claims. In April of 2014, as we summarized here, following protests the SSA announced it was immediately suspending its intercept program -- used to target IRS tax refunds --  for purposes of stale debt collection.  As I commented then, it seemed SSA was more concerned about the government's "self help" approach to debt collection, than answering questions about how and why it was seeking refunds from children of the alleged debtors. 

Is this a SSA-specific form of "filial support" claims, where children are liable for certain debts of their parents, or are the claims based on a theory of indirect benefit to the children? 

George Washington Law Professor Naomi Cahn alerted us to the latest news on renewed debt collection by SSA  from the Washington Post. (Thanks, Naomi!)  Some of the same families who were granted refunds of intercepts earlier in the year, were once again asked to pay their ancestors' debts. Five of the families have filed a lawsuit to seek answers, and the Post has also asked for an explanation, apparently with less than satisfactory results:

"Asked to explain the about-face, Social Security officials said they would respond only to written questions. Late Friday, four days after The Post provided questions, the agency issued this statement from spokesman Mark Hinkle: 'We are finalizing our review of the Treasury offset program, but cannot discuss specifics due to the pending litigation.' The offset program is Treasury’s effort to collect on debts to Social Security and other agencies by confiscating Americans’ tax refunds."

For more on the controversy, read Marc Fisher's article, "Social Security Continuing to Pursue Claims for Old Debts Against Family Members" from the Washington Post. 

December 15, 2014 in Consumer Information, Current Affairs, Social Security | Permalink | Comments (0) | TrackBack (0)

Saturday, December 13, 2014

Los Angeles Public Radio Affilliate Continues Discussion on Capacity and Consent

AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.

Here's the link to a podcast of the December 12, 2014 segment.

December 13, 2014 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 (0) | TrackBack (0)

Friday, December 12, 2014

Scam Alert--Telephone Scam Aimed at Seniors Sweeping the Country

One of my elder law practioner-friends, Julian Zweber, was called by scammers this week.  Julian smelled a rat, and now he's working with the Ramsey County Sheriff's Dept. to track down the scammers.  I understand from other colleagues that variations of the scam are is sweeping the country.  It has been very effective in bilking seniors of a LOT of money.

Details on the Minneapolis/St. Paul version. 

The Hennepin County Sheriff’s Office is warning residents about telephone scams.

Individuals are calling residents and telling them there is a warrant out for their arrest because of unpaid court fees or unpaid fines. The phone scammer tells residents that they will be arrested unless they provide credit card or payment information.

Police departments in the metro area also have received reports about phone scammers who tell residents that they owe back taxes. The phone scammers threaten that law enforcement officers will arrest residents who don’t provide payment information over the phone.

The IRS and the Minnesota Department of Revenue have recently issued alerts reminding people that their agencies do not call residents about tax issues. Instead, these agencies send letters to residents.

Nationally, there are a variety of different phone scams. Some of the con artists impersonate an IRS agent, a state revenue department representative, a Sheriff’s deputy, a police officer, or personnel from other federal law enforcement agencies.

The phone scams have resulted in identity theft, fraud, and unauthorized credit card use.

Never provide personal information or credit card numbers over the phone unless you know that the call is legitimate. People who receive a telephone call that appears suspicious, should NOT provide personal information and should instead call local law enforcement or call 911 to report the incident.

Do not rely on caller ID to verify the origin of a phone call. In some cases, calls from phone scammers will appear on a caller ID as originating from a law enforcement agency or government agency, when in reality the call is a hoax and a result of technology that manipulates caller ID. If you are uncertain about the identify of a caller; hang up the phone, locate the official phone number of the agency that called you, and call the agency directly.

 

December 12, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Another Filial Friday: Rest Haven York v. Deitz

"Nonprecedential decisions" sometimes make me a little crazy.  Talk about them? Ignore them?  What if that's where all the action is happening on a tough topic? 

This time I think it is important to report a nonprecedential decision, one of the few to emerge from the appellate courts in Pennsylvania in recent years where sons or daughters are not held liable under Pennsylvania's filial support law, and thus were not required to pay for the parent's nursing home care.

In the case of Rest Haven York v. Deitz, Case No. 426 MDA 2014, the Pennsylvania Superior Court issued a nonprecedential memorandum ruling on August 22, 2014.   Mom resided in the plaintiff-nursing home for about two and a half years, and when she died there was an alleged unpaid bill of approximately $55k.  No details are provided in the opinion about why that debt accrued or whether Medicaid was used for any payments.  The amount is large enough to suggest something went wrong somewhere on the payment side of the ledger, but it also is not large enough to suggest that no payments were made.

The facility sued the resident's daughter, who was alleged to have "signed the admitting papers as agent under a power of attorney" executed by her mother.  The complaint, filed three months after the mother's death, alleged breach of contract, implied contract, unjust enrichment, fraud, "and breach of duty to support" under Pennsylvania's filial support law, 23 Pa.C.S.A. Section 4603.

Daughter was granted summary judgment by the trial court, dismissing the entire suit.  The only issue on appeal was whether the nursing home had "failed to provide evidence that could have allowed the trial court to declare [the mother] indigent." Indigency, an undefined term in the statute, is one element of Pennsylvania's filial support law. 

The appellate court rejected the daughter's argument that indigency must somehow be declared or established by a judgment before a family member's support obligation can be triggered.  However, the court also concluded that attaching a copy of the contract signed by the daughter, as agent for her mother, and attaching a copy of "overdue" charges on the mother's account did not suffice. Interestingly, the court then went on to offer a bit of a lesson on how nursing homes "could" prove their case -- so, a nonprecedential opinion with a moral?

"To present competent evidence to prove indigence, Rest Haven should have provided a bank statement or similar documentation attesting to [the mother's] financial condition." 

In giving this lesson, the court cited two very precedential cases decided by the same court, Healthcare & Retirement Corp. of America v. Pittas (2012) and Presbyterian Medical Center v. Budd (2003).

As I often say to family members or lawyers who are startled to read about filial support law obligations, Pennsylvania appellate courts take this law very seriously when it comes to unpaid nursing homes.  There are some defense strategies available, but a successful defense is not easy.    

December 12, 2014 in Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)