Monday, October 16, 2017
Ok, this is not Irma-specific but it is hurricane-specific. Although a Florida-specific publication, I thought the information important to all of us. Health News Florida reports on a recent study coming out of the University of South Florida. Study: Evacuating Nursing Home Patients Before A Storm Not Always Safest Option references that there are risks when evacuating residents of nursing homes with this "[n]ew research... [suggesting] evacuating nursing home patients before a storm increases the chance of both hospitalization and death." The study is hurricane-specific; keep in mind many states may be hit by hurricanes and recall the events from Katrina and Harvey, as well as Irma. Here's a description from the author of the study: "[W]e looked at four different hurricanes. We looked at the hurricanes that were affected Texas and Louisiana, hurricanes Katrina, Rita, Ike and Gustav. Those were hurricanes in 2004 and 2008. In those studies, we carefully looked at the nursing homes that sheltered in place or stayed where they were before the storm, versus the nursing homes that are evacuated. Our work indicated that regardless of whether places evacuated or sheltered in place, hurricanes created an increased rate of death. In fact, we found that an extra 277 deaths occurred and 872 hospitalizations occurred during those storms as a result of the hurricanes."
Why is evacuation harder on the residents than sheltering in place? According to the author, it's not just that residents are vulnerable and have higher and diverse levels of needs and services.
They are in a nursing home because they require 24-hour care from skilled clinicians. So they're very sick. They have high levels of co-morbidities, these residents have high levels of diseases, and many of them suffer from congestive heart failure or diabetes. And many of them have cognitive impairments -- severe cognitive impairment -- Alzheimer's disease and other conditions that make it difficult for them to be able to be cared for outside of this skilled 24-hour care place.
The important part as well is that these individuals when they're in a nursing home receive, on an ongoing basis, carefully crafted care. They get their medications at normal times. They have an environment that is cooled and warmed the way it should be. They have food delivered on a normal basis and lots of skilled services being delivered. During a hurricane, during a disaster situation, those carefully scheduled routines obviously aren't able to be conducted in the way that you would love. And as a result, we believe that that kind of careful work is not able to be done during a disaster. So they are at risk. It is also true, and we know this from other studies, that there is a tension level within a facility that's getting ready to evacuate or getting ready just to prepare for the storm.
The study offers several recommendations, including sheltering in place, requiring generators (the subject of an earlier post), public availability of evacuation plans (and have them be more detailed, recognizing that there may need to be various options to meet the levels of residents), more funding and considering transfer in lieu of evacuation. Here are two that I thought were worth quoting from the author
Another recommendation we have is that nursing homes and assisted living be built in places where they can sustain storms. We have too many nursing homes and assisted living in floodplains and those buildings are not prepared. It appears that some are not prepared to deal with storm surge or to deal with even flooding on what could be easily a normal summer day in Florida....
I believe, and I think my colleagues believe, that we also need some degree of litigation protection for people who are trying to do their job well after a disaster. There's a lot of Monday-morning quarterbacking and there are cases where people who have tried very hard and heroically tried to work in the nursing home, or in assisted living, are sued because there are bad outcomes.
There is a lot more covered in the article, and I think it is well worth reading, even if you live in a land-locked state.
Sunday, October 15, 2017
That's similar to the title of a news story on Kaiser Health News Social Security Giveth, Medical Costs Taketh Away, reporting on the amount of Social Security is spent by beneficiaries on out of pocket hospital costs. On Friday SSA announced its 2018 figures, including the COLA increase. However, Medicare's 2018 premium amounts haven't yet been announced, but speculation is that the premium raises will wipe out the COLA increase. The Washington Post reported Social Security checks to rise 2 percent in 2018, the biggest increase in years reports a 2% increase in Social Security for 2018 and noted that "[h]ealth care is their biggest expense, and it's one of the fastest rising costs in America. Medicare Part B premiums are expected to rise in 2018, eating up much of the Social Security increase for some seniors." Forbes reported similarly in its article, Gotcha! Social Security Benefits Rising 2% In 2018, But Most Retirees Won't See Extra Cash, "many recipients will find most or all of that increase eaten up by a jump in the Medicare Part B premiums deducted from their monthly Social Security checks...."
The Forbes article explains why beneficiaries won't really come out ahead with the COLA increase.
By law, normal Part B premiums are supposed to cover 25% of Medicare's costs for providing doctor and outpatient services. But about 70% of Social Security recipients have been protected in the past two years by a “hold harmless” provision which provides no increase in Medicare premiums can reduce a Social Security recipient's net monthly check below what it was in the previous year. (Recipients who are considered “high income” and those who don’t have their premiums deducted from Social Security aren’t protected by this hold harmless provision.) Since retirees got no Social Security increase in 2016 and a measly 0.3% hike in 2017, the 70% are now paying an average of $109 a month, instead of the $134 per month premium that would be needed to cover 25% of costs.
While Medicare Part B premiums for 2018 haven’t yet been announced, they’re expected to remain at around $134----meaning the 70% will see about $25 per person---or $50 per couple---of any Social Security benefits increase consumed by higher Medicare premiums.
With open enrollment starting, expect the 2018 premiums to be announced.
Friday, October 13, 2017
The National Guardianship Association takes the understandable position that "guardians are entitled to reasonable compensation for their services," while bearing in mind "at all times the responsibility to conserve the person's estate when making decisions regarding providing guardianship services" and in setting their fees. See NGA Standard 22 on Guardianship Service Fees.
Should there be "schedules" for fees, such as hourly fees, or maximum fees? Modern courts often struggle with questions about how to determine fees, and some states, such as Pennsylvania, have a fairly flexible list of common law (not statutory) factors for the court to consider.
In a April 2017 trial court opinion in Chester County, PA, for example, the court reviewed $54k in fees for the lawyer appointed to serve as guardian, and another $13k in fees for an attorney the guardians had hired. According to the court, "Neither had sought leave of court prior to paying these sums out of the principal of the estate; the court learned of this when its auditor reviewed the annual report wherein these payments were disclosed." The ward in question was 87-years old and a resident in a skilled nursing faciility, with dementia and other health issues. The court struggled with the bills, commenting the format used was "inordinately difficult to follow" and at least on first review seemed "high for ten (10) months." For guidance in evaluating the bills, the court did "two things. It first searched the dearth of cases available for any guidance." It also called the individuals to discuss the billing formats and learn more about the work completed.
The Pennsylvania precedent was almost exclusively unpublished opinions, often from trial courts. The Chester County court recounted some of the history of guardianships, from English times to colonial courts to the present, concluding, "In any event, no reported decisions have been located concerning professional compensation of guardians of the persons. Apparently, society had no need of their services until more recent times."
Ultimately, Chester County Court of Common Pleas's Judge Tunnell approved the fees, finding "a number of untoward events which transpired during the year in question," including a serious injury the ward sustained from a fall in the nursing home, additional health related concerns, the decision to relocate her to a different nursing home, and difficulties in selling the home that had remained empty for more than year. The case had a history of accounting disputes, as evidenced by a 2013 decision by the same judge, although it did not appear anyone had challenged the latest fees reviewed sua sponte by the court in the 2017 decision.
In another Pennsylvania opinion, this time from an appellate court but also unpublished, the court observed, apparently with approval, that in Allegheny County, the Guardianship Department in the Orphan's Court uses "court investigators" to review guardians' requests for payment of fees from the incapacitated person's estate. See e.g., In re Long, Superior Court of Pennsylvania, February 14, 2017 (not officially reported).
I'm curious whether our readers have thoughts on "scheduled" fees for guardians?
Thursday, October 12, 2017
The Robert Matava Elder Abuse Prosecution Act of 2017, Senate Bill 178, has been sent to the President for signature. Here's the summary of the act:
Elder Abuse Prevention and Prosecution Act
TITLE I--SUPPORTING FEDERAL CASES INVOLVING ELDER JUSTICE
(Sec. 101) This bill establishes requirements for the Department of Justice (DOJ) with respect to investigating and prosecuting elder abuse crimes and enforcing elder abuse laws. Specifically, DOJ must:
- designate Elder Justice Coordinators in federal judicial districts and at DOJ,
- implement comprehensive training for Federal Bureau of Investigation agents, and
- establish a working group to provide policy advice.
The Executive Office for United States Attorneys must operate a resource group to assist prosecutors in pursuing elder abuse cases.
The Federal Trade Commission must designate an Elder Justice Coordinator within its Bureau of Consumer Protection.
TITLE II--IMPROVED DATA COLLECTION AND FEDERAL COORDINATION
(Sec. 201) DOJ must establish best practices for data collection on elder abuse.
(Sec. 202) DOJ must collect and publish data on elder abuse cases and investigations. The Department of Health and Human Services (HHS) must provide for publication data on elder abuse cases referred to adult protective services.
TITLE III--ENHANCED VICTIM ASSISTANCE TO ELDER ABUSE SURVIVORS
(Sec. 301) This section expresses the sense of the Senate that: (1) elder abuse involves exploitation of potentially vulnerable individuals; (2) combatting elder abuse requires support for victims and prevention; and (3) the Senate supports a multipronged approach to prevent elder abuse, protect victims, and prosecute perpetrators of elder abuse crimes.
(Sec. 302) DOJ's Office for Victims of Crime must report to Congress on the nature, extent, and amount of funding under the Victims of Crime Act of 1984 for victims of crime who are elders.
TITLE IV--ROBERT MATAVA ELDER ABUSE PROSECUTION ACT OF 2017
Robert Matava Elder Abuse Prosecution Act of 2017
This bill amends the federal criminal code to expand prohibited telemarketing fraud to include "telemarketing or email marketing" fraud. It expands the definition of telemarketing or email marketing to include measures to induce investment for financial profit, participation in a business opportunity, or commitment to a loan.
A defendant convicted of telemarketing or email marketing fraud that targets or victimizes a person over age 55 is subject to an enhanced criminal penalty and mandatory forfeiture.
The bill adds health care fraud to the list of fraud offenses subject to enhanced penalties.
(Sec. 403) DOJ, in coordination with the Elder Justice Coordinating Council, must provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.
(Sec. 404) It grants congressional consent to states to enter into cooperative agreements or compacts to promote and to enforce elder abuse laws. The State Justice Institute must submit legislative proposals to Congress to facilitate such agreements and compacts.
(Sec. 501) This section amends title XX (Block Grants to States for Social Services and Elder Justice) of the Social Security Act to specify that HHS may award adult protective services demonstration grants to the highest courts of states to assess adult guardianship and conservatorship proceedings and to implement necessary changes. The highest court of a state that receives a demonstration grant must collaborate with the state's unit on aging and adult protective services agency.
(Sec. 502) The Government Accountability Office (GAO) must review and report on elder justice programs and initiatives in the federal criminal justice system. The GAO must also report on: (1) federal government efforts to monitor the exploitation of older adults in global drug trafficking schemes and criminal enterprises, the incarceration of exploited older adults who are U.S. citizens in foreign court systems, and the total number of elder abuse cases pending in the United States; and (2) the results of federal government intervention with foreign officials on behalf of U.S. citizens who are elder abuse victims in international criminal enterprises.
(Sec. 503) DOJ must report to Congress on its outreach to state and local law enforcement agencies on the process for collaborating with the federal government to investigate and prosecute interstate and international elder financial exploitation cases.
(Sec. 504) DOJ must publish model power of attorney legislation for the purpose of preventing elder abuse.
(Sec. 505) DOJ must publish best practices for improving guardianship proceedings and model legislation related to guardianship proceedings for the purpose of preventing elder abuse.
Note specifically sections 504 and 505. The text of the enrolled bill can be found here as a pdf.
The next meeting of the Aging, Law & Society Collaborative Research Network is set for June 7-10, 2018 in Toronto as part of the Law & Society Annual meeting. Here's the info from the announcement:
The Aging, Law, and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop sponsored by the CRN as part of the Law and Society Association’s 2018 Annual Meeting. The Aging, Law & Society CRN brings together scholars from across disciplines to share research and ideas about the relationship between law and aging, including how the law responds the needs of persons as they age and how law shapes the aging experience. This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.
The CRN encourages paper proposals on a broad range of issues related to law and aging. However, we especially encourage proposals on the following topics:
• Creative, inter-disciplinary and empirical methodologies for studying law and aging;
• Intergenerational relationships, ageism, and intergenerational justice;
• Theoretical frameworks for understanding the law as it relates to older adults;
• Legal responses to dementia;
• Long-term care;
• Elder abuse and neglect;
• Human rights of older adults; and
• Identity and intersectionality in older age.
In addition to paper proposals, we also welcome:
• Volunteers to serve as panel discussants and as commentators on works-in-progress.
• Ideas and proposals for themed panels, round-tables, or a session around a new book.
Proposals are due October 16 (get busy writing). The form for submission is available here http://www.lawandsociety.org/Toronto2018/2018-guidelines.html). and should be sent by email to Professor Nina Kohn email@example.com & Dr. Issi Doron, firstname.lastname@example.org along with a 1000 word abstract and your contact info.
Daughters' Hidden Video Camera In Mother's Nursing Home Documents Caregiver Abuse; 10th Circuit Affirms $1.2 Million Damage Award
The 10th Circuit in Racher v. Westlake Nursing Home Limited Partnership, d/b/a/ Quail Creek Nursing & Rehab Center, affirmed an award of $1.2 million in compensatory damages to the estate of Mrs. Mayberry, a 90+ year old resident. Key evidence included five video recordings, from a camera hidden in the resident's nursing home room by her daughters, that showed:
... [Employee] Gakunga slapping Mrs. Mayberry in the face with latex gloves, wadding up the gloves, stuffing them in Mrs. Mayberry's mouth, and forcibly holding them there as Mrs. Mayberry attempts to push Gakunga's hand away. . . . . [A second employee] Kaseke is seen in the videos watching this take place. . . . . The videos then show Gakunga and Kaseke roughly lifting Mrs. Mayberry from her wheelchair into bed and Gakunga pushing on Mrs. Mayberry's face in what appears to be an attempt to make her lie down. . . . One clip shows Gakunga pointing her finger at Mrs. Mayberry and apparently scolding her or perhaps threatening her. . . . Finally, the video clips show Gakunga “performing some sort of compressions with both hands to [Mrs. Mayberry's] torso.” . . . . Plaintiffs assert that this action was intended to force Mrs. Mayberry to empty her bladder so the caretakers would not have to change her diaper as often. . . . . Quail Creek and the caretakers denied any knowledge of this practice, but acknowledged that there was no medical justification for the action.
The daughters testified their mother went downhill as a result of the incidents that occurred between February and early April 2012 and that Mrs. Mayberry died in July 2012 "just three months after the abuse was discovered."
One issue on appeal was whether Oklahoma's "statutory limitation on noneconomic damages" of $350,000 was mandatory. Apparently the statutory cap was raised for the first time in a motion to "alter or amend the judgment," 28 days after the judgment was entered in the case and more than a month after the jury trial concluded. In its September 28, 2017 opinion, the 10th Circuit had an interesting analysis of the interplay between federal rules of civil procedure and the need to "predict" state substantive law in a diversity case, and "agreed with the plaintiffs that the cap is an affirmative defense that [defendant nursing home] waived."
October 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, October 11, 2017
The New York Times recently ran an interesting article discussing women's concerns about their appearances as they age. Working to Disarm Women’s Anti-Aging Demon opens with an essay of sorts about women dying their hair to cover the gray. What's the scope of the situation? According to the author, "[a]ging is harder for women. We bear the brunt of the equation of beauty with youth and youth with power — the double-whammy of ageism and sexism. How do we cope? We splurge on anti-aging products. We fudge or lie about our age. We diet, we exercise, we get plumped and lifted and tucked." The author goes on to offer that "[t]hese behaviors are rooted in shame over something that shouldn’t be shameful. And they give a pass to the underlying discrimination that makes them necessary." The author posits the downsides of focusing on appearance and appearance of age not only disempowers women, it "reinforce[s] ageism, sexism, lookism and patriarchy."
So what is the solution? The author gives these tips "[t]ap into what we know: Getting older enriches us... [l]earn to look more generously at one another and ourselves.... [r]eject old-versus-young ways of thinking ... and [c]ome together at all ages and talk about this stuff." The author suggests it's time to get "off the hamster wheel of age denial, share power, and think and act in pro-aging ways." The author concludes her article with this
We have a choice: we can keep digging the hole deeper, or we can throw away the damn shovel. We can move, if we have the will and the desire and the vision, from competing to collaborating. We can turn it from a conversation about scarcity and loss to one about empowerment and equity. And we can take that change out into the world. The women’s movement taught us to claim our power; a pro-aging movement will teach us to hold onto it.
Thanks to Professor Naomi Cahn for sending us this article.
During the last several years, I've received calls from around the country about possible guardianship "oversight" concerns. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I've been getting more calls. The question arises: Is there a pervasive problem with court-appointed guardians for older adults in the United States?
In my opinion, the answer is "no, not pervasive." At least, that's my answer if the definition of pervasive is "universal," or omnipresent, or rife, or widespread. In the 20+ years I've been working in elder law, I've unfortunately reviewed a lot of cases of exploitation, but it is comparatively rare that I've been asked to examine a court-monitored guardianship where there was a problem created by inadequate attention by the courts, much less active misconduct by the court or agency. Granted, that is just one law professor's experience.
Still, in my opinion, the oversight problems that do exist within the U.S. are significant, periodic, sometimes recurring or persistent, and often have common elements. The issues can exist in any county court or fiduciary administrative system. Historically, these courts -- sometimes called probate courts, fiduciary courts, surrogate courts, or orphans courts -- depended on the guardians for management of all issues, once the appointments were made. The judges trusted their appointees to take their fiduciary responsibilities seriously. But, as is sometimes said in international relations, the problem can be how best to "trust, but verify" proper behavior. With more elder boomers, there can be increased need for guardians, and thus more potential for guardians to be monitored.
- For example, in Maricopa County, Arizona, an investigative news series, that began in 2008 with the reporting of Laurie Roberts for the Arizona Republic, described a number of mishandled older adult guardianships. In some instances, the family members were so busy arguing about money, that the incapacitated elder was ignored, while his or her estate was diminished to pay fees. Sometimes the question was whether a "full" guardianship was even necessary. The problems, once investigated not just by journalists but by the courts, resulted in changes in Arizona guardianship law.
- In Palm Beach County, Florida, complaints about appointment of a particular individual as guardian in a large number of cases, focused on conflict of interest and claims of favoritism by the court, complaints that came from a number of families. Eventually, in one case challenging the system, a jury reportedly awarded more than $16 million against two West Palm Beach attorneys for "breach of fiduciary duties." The complaints also led to state investigations of Florida's entire oversight systems, and brought three years of legislative changes to Florida guardianship laws.
- Most recently, two co-founders of a nonprofit guardianship company, Ayudando Guardianship, in Bernalillo County, New Mexico were indicted in federal court in July 2017 with criminal charges including conspiracy, mail fraud, aggravated identity theft, and money laundering. The company was the appointed fiduciary in hundreds of cases.
Especially when the Clark County, Nevada cases are included in this list of recent challenges to guardianship oversight systems, concerns about proper and objective oversight are real; without a equally real commitment to more careful selection, training, monitoring and accountability for guardians, the problems can be predicted to increase as the baby boomer generation of seniors get to their 70s, 80s, or 90s. In 2016, the GAO for the United States responded to a U.S. Senate Special Committee on Aging's request for data on "the extent of abuse by guardians," and concluded that "courts lack comprehensive data on older adults in guardianships and elder abuse by guardians, but some courts have limited information." Unreliable data certainly leaves open the potential for the occasional problems to become pervasive problems.
October 11, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)
Tuesday, October 10, 2017
A recent story reports on the Florida governor's statement calling on a state Constitution Revision Commission "to include provisions to protect residents of nursing homes and assisted living facilities." Scott Wants Nursing Home Rules In Constitution reports that the Florida Governor is calling on the Commission "to consider adding 'permanent measures to put patient safety first.'" The constitutional amendments will be voted on in the November, 2018 election.
Meanwhile, the nursing home in Hollywood Florida where the deaths occurred filed suit challenging the state's moratorium on admissions as well as suspension from the state's Medicaid program. Broward Nursing Home Expands Lawsuit Against State explains that the facility is seeking an injunction.
Stay tuned, there's a hearing on the facility's motion before the end of the month.
Effective October 26, 2017, another set of requirements comes into play for notaries public in Pennsylvania. The changes, which became effective in stages over the course of many months, responded to reports of abuses. Indeed, when I was supervising our Elder Protection Clinic at Dickinson Law, we would occasionally come into contact with powers of attorney or deed transfers that were allegedly signed in from of a notary as a witness, but which clearly were not.
On one occasion, we learned that another law office "routinely" had the in-office notary using her official power for documents signed in the home of the attorney's clients. She was following her boss's direction. Sadly, our law students had an extra lesson that day on potential obligations to report such violations to the State Bar.
The most recent changes to Pennsylvania's law include a notary's mandated attendance at training classes. The notary was, even before the latest changes, required to have "personal knowledge" or "satisfactory evidence" of the identity of the individual whose signature was to be notarized, but the most recent changes specified documents that can be used as satisfactory evidence: "a passport, driver's license or government-issued nondriver identification card, which is current and unexpired," or another form of government identification which is current and "contains the signature or photograph of the individual, and is satisfactory to the notarial officer." 57 Pa.C.S.A. Section 307. A third alternative is documenting identity through "verification on oath . . . of a credible witness," a vague process that seems to raise more red flags than it eliminates.
Overall, the changes are a sad reflection of the times, not the least of which are the extraordinary opportunities for identity theft triggered by data hackers. Some Pennsylvania elder law attorneys, however, are wondering whether the requirement of current, unexpired government i.d. cards will make it more difficult to meet the needs of disabled, older clients.
Monday, October 9, 2017
A recent column in the New York Times mentioned several books that focus on caring for elders. Hard-Won Advice in Books on Aging and Elder Care is written by the columnist who has been authoring a series of columns about Medicaid as Congress focused on health care repeal. As a result of those columns, some of the comments the author received were recommendations of books for the author to read. Using the criteria of those books mentioned at least twice, the author read and wrote about 4 books, which the author describes as "in their own way utterly essential reading. Few of us are prepared for the financial and emotional complexities of managing the last several years of our lives. But as we live longer, drain what may prove to be inadequate retirement savings and lean harder on already strained government programs, we’ll probably find ourselves facing ever more challenging questions and unfortunate compromises." The books he includes in his column are Being Mortal, the 36 Hour Day, A Bittersweet Season and Being My Mom's Mom.
What books might you recommend to your students?
Steve Moran, who writes for Senior Housing Forum, a website that offers itself as a "place for conversation and collaboration," always seems willing to take on sensitive topics. Recently, in a commentary piece entitled Black Consumers and Senior Living, he nonetheless began:
I am terrified to be writing and publishing this article. It seems that writing anything about race is fraught with all kinds of downsides and very little in the way of upside. Except that we have an ethnic problem in senior living. Today, based on resident populations, only white people (and Asians) seem to like senior living.
He addresses provider attempts to "explain away" the problem and arguments about whether "Blacks and Whites have different world views." Ultimately, recognizing the need for both sensitivity and fearlessness, he concludes, "[I]f senior living is really a great thing, and I believe it is, then we have an obligation" to make it available to everyone.
Certainly there are "marketing" reasons to reach out to a broader circle of perspective clients to offer supportive, attractive community living. But, I think Steve's short post is a good start on other fundamental questions about what consumers want, need, expect, and cherish as they approach some invisible line that makes them eligible for senior living.
Sunday, October 8, 2017
Justice in Aging has released a new issue brief focuses on the emergency readiness of nursing homes. Why Many Nursing Facilities Are Not Ready For Emergency Situations explains the situation in the executive summary:
Nursing facility residents can be particularly at risk during natural disasters, as has been demonstrated yet again during Hurricanes Harvey, Irma, and Marie. The hurricanes resulted in death and injury in nursing facilities across the region, including twelve deaths in one Florida facility.
These deaths and injuries, and the desire to prevent harm in the future, have directed renewed attention on emergency preparedness. This issue brief discusses existing federal and state law, and makes recommendations to address gaps in current law.
Federal regulations on nursing facility emergency preparedness were issued in September 2016, and are scheduled for full implementation in November 2017. The regulations address five primary areas: emergency plans, facility procedures, communication plans, training and testing, and emergency power systems.
Unfortunately, these new regulations are inadequate to protect residents, in part because some of the regulatory standards are excessively vague, and in part because the regulations only govern nursing facilities and cannot mandate the broader coordination that would be advisable for community-wide emergency preparedness. Federal, state, and local governments should take additional steps to ensure adequate preparation for the natural disasters that inevitably will envelop nursing facilities and other health care providers in years to come.
The issue brief offers 7 recommendations including requiring (1) emergency generators, (2) prior coordination between government, healthcare providers and nursing homes, (3) arrangements for emergency evacuations, (4) local governments to keep the pertinent information "on an ongoing, community-wide basis", (5) governments or providers to create resources designed to help in drafting the emergency plan, (6) governments to mandate outside review of the facilities' emergency plans and (7) federal surveyors to impose appropriate sanctions for those facilities that don't comply with the emergency plan.
Friday, October 6, 2017
The last few weeks have been very tough, haven't they? As have the last few months, and perhaps even the last few years.
Many seem to be trying to understand why a 64-year-old "retired" man in the U.S. would assemble an arsenal of weaponry, unleash it on a crowd of innocents enjoying a last few weekend hours of music, and then take his own life. While it is, on a comparative scale, unusual for a 60+ individual to be involved in a mass shooting, "older men" apparently have a comparatively high suicide-by-gun rate. While there may be no way to understand the motivation for the most recent murders, there are still reasons to ask whether aging and deteriorating cognitive health can be factors in gun-related deaths.
In the search for some understanding I read Leah Libresco's opinion piece in the Washington Post: "I used to think gun control was the answer. My research told me otherwise."
In that article, her research on the annual 33,000+ gun deaths in America, led her to several interesting observations and conclusions. She writes, for example, that the statistics showed her:
- "Two-thirds of gun deaths in the United States every year are suicides."
- "Older men, who make up the largest share of gun suicides, need better access to people who could care for them and get help."
Libresco's essay sent me in turn to a feature story, part of a FiveThirtyEight series analyzing annual gun deaths, on "Surviving Suicide in Wyoming," by Anna Maria Barry-Jester. She writes in greater detail about warning signs of deteriorating mental health, especially among older men: isolation, sometimes self-imposed; sleeplessness; depression; anxiety; and unresolved physical health problems.
As these articles point out, limiting access to guns is appropriate for individuals with suicidal thoughts. That's different than "gun control laws." And while guns may too often be the means to effectuate "rash desperate decisions," these researchers also suggest the greatest need is for better public awareness and response to warning signs, and for improved diagnosis and access to effective care, including social, mental and physical health care.
October 6, 2017 in Advance Directives/End-of-Life, Crimes, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, October 5, 2017
CMS has announced the availability of Hospice Compare and it is now live! The website is searchable either by the name of the agency or by zip code. Not only does the website provide general information about hospice, the website provides a consumer checklist, information about Medicare's coverage of hospice care and other useful information. The site allows for comparisons of hospice agencies based on their quality of care. Check it out!
Former Secretary of Commerce Penny Pritzker: On Her Early Business Career in "Senior Living" & Avoiding Conflicts of Interest
I'm a fan of early morning podcasts of high-profile interviews. For me there is something about listening to them in dim light before my day gets fully started. It allows me to fully "hear" little nuggets of information, ideas about innovations or even law-related gems.
Recently I listened to the August 28, 2017 podcast of David Axelrod's interview of Penny Pritzker, who was Secretary of Commerce during the second term of President Obama. I'd forgotten that Pritzker's early business career included a start-up with "Classic Residence by Hyatt," later rebranded as Vi, a form of high-end senior living communities, operated mostly in the "CCRC" model. Pritzker talks about a family tradition of "graduating from law into business." From the interview transcript, where shes discusses her entry into the family business:
I went to law school [and] I went to business school [at Stanford]. I came back to Chicago and and arrived. And it wasn't obvious what I was going to do but I wanted I had seen my family build businesses and I figured I wanted to do that too. And but it was an environment where there were no women. There were no women, there were no women vice presidents, there were no women in the organization. There was--there were no women parking in the parking garage if you will know women eating in the dining room if you will. And so it required me to I think find what I call the white space. I had to figure out where did I fit. And I felt that the place that I fit best was to really actually create new businesses. And so I became an entrepreneur within two years of arriving back in Chicago. I--there was talk of starting a new business in senior living and I basically said to my uncle I want to do that. And that's how I started my first business which was Classic Residence by Hyatt. And it was you know I was 27 years old. I had a terrific education and I had worked during school as well but there was so much I needed to learn and I had to learn by doing. And I made a ton of mistakes. I didn't know. Some of the people I hired were wrong, some of the decisions I made were wrong.
She speaks candidly about the experience, admitting "we didn't really know what we were doing and we weren't sure exactly what the market [of senior living] wanted or needed." At one point, she realized a $40 billion family investment in her business was at risk, and she talked to the then-patriarch of the Pritzker family, her uncle Jay Pritzker , and said that "if we can't turn this around in six months you should fire me and we should liquidate."
Wednesday, October 4, 2017
New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships
The New Yorker Magazine offers "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.
In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”
There are fundamental issues at the heart of this kind of history. Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself. But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.
My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly.
October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 3, 2017
The Canadian Elder Law Conference is again hosting a two-day program on the law and policy issues impacting older adults, in Vancouver, British Columbia on November 2-3, 2017.
After taking this course, you will:
be better able to identify and address the legal issues that impact your older client
be familiar with recent trends, developments, and research in the law with respect to elder law topics such as medical assistance in dying, mental capacity, undue influence, independent legal advice, financial abuse, and adult protection
better understand the legal, practical, and ethical issues in relation to older clients with mental capacity and self-neglect issues
The program this year will include a debate on "video surveillance in long-term care," a panel on medically assisted death and advance consent, and a discussion of undue influence and independent legal advice.
For more, see Coming of Age: Elder Law in Canada and Its Future, including registration information.
Monday, October 2, 2017
The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds. It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."
Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners. A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law. The mother-in-law later challenged the transaction as contrary to her understanding and intention.
Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts. They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.
As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.
Not so fast. Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process.
October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, October 1, 2017
Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017. Not a violent contact and apparently not one involving physical or mental injury. But clothing was removed and fluids were later documented. Now residents are being transferred and more than 70 employees will reportedly be laid off.
As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities. A criminal investigation found no grounds for prosecution. A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports. The actual closure action was made voluntarily by Genesis.
Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:
- Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"?
- How far must a LTC provider go to prevent intimate contact between residents?
- After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
- How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?
- Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?
October 1, 2017 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)