Monday, October 12, 2015
The Senate Special Committee on Aging held a hearing on October 7, 2015. The subject of the hearing was Protecting Seniors from Identity Theft: Is the Federal Government Doing Enough?”
Witnesses included a representative of the Senior Medicare Patrol, HHS, CMS and the Electronic Privacy Information Center (EPIC). Individual witness' testimony is available for download as a pdf. A video of the hearing is available here. The EPIC witness testified concerning identify theft related to Social Security Numbers. A press release about his testimony is available from the EPIC website here.
AARP ran an article on the impact that livable communities have on local economies. The Livability Economy Livable Communities bring financial benefits to homeowners, business and local governments. covers a new report from AARP on The Livability Economy: People, Places and Prosperity.
This 28 page report focuses on 4 domains for livability: compactness, transportation, diversity of housing and land use integration. This is how livability is explained in the report
Livability is a high-level performance measure of neighborhood design factors that are critical to high quality of life for people of all ages. The Livability Economy identifies a framework based on these design factors that includes four essential livability outcomes, and documents how communities have benefited economically by focusing on these outcomes ....
Friday, October 9, 2015
We have previously blogged about technology that allows a person to more effectively age in place and about "smart homes." As well, we have mentioned the security issues with some technologies, so I was interested in a recent blog post published on the AARP blog Thinking Policy.
Making the Smart Home a Secure Home focuses on smart homes, described as a home designed "to help automate routine tasks and make homes more efficient." Looking at security for smart home technologies, the author offers 3 tips for a secure smart home: (1) "build strong security protections into all connected devices from the start...." (2) ensure that "software controlling connected devices is can be updated...." and (3) "securely transmitting and storing data gathered by connected devices"
The author concludes the article by saying:
The smart home promises to improve the lives of consumers by automating routine tasks and finding efficiencies that save money. Securing the connected devices constituting the smart home will make it more likely that consumers will adopt this technology. If the smart home industry continues to neglect the security of devices, government-mandated security protections might be necessary to resolve these issues.
Thursday, October 8, 2015
On October 4, CBS Sixty Minutes profiled self-driving cars. I kept expecting to see Becky Morgan on the program, given her interest in technology! I suspect, however, that she would be as perplexed as I was by the several comparisons of the car's speed controls to "driving like a little old lady."
At this point in development, even the most advanced design periodically signals for the human driver to take over when the car encounters un-preprogrammed facts. Plus, alas, the current version isn't prepared for driving in snow. Perhaps that's the consequence of all those engineers working on this in Silicon Valley in California.
Healthline News ran a story that made me sad, even though I know these scams happen. Growing Kind of Elder Abuse: Marrying Seniors for Their Money ran on September 15, 2015. The article quotes a California attorney whose firm handles financial exploitation cases who "[said] marrying for money is a form of elder abuse that is spreading throughout the United States." The attorney noted that this type of financial exploitation case is often unreported and hard to uncover. These "sweethart scams" happen to both sexes about equally. The article quotes the deputy director of the National Center on Elder Abuse (NCEA) that
[W]hile these scams can take many forms... a common scenario is that the elders have experienced a recent loss, such as the death of a spouse, and they find themselves befriended by someone younger.
“If children aren’t nearby or the person is isolated and depressed, they’re more vulnerable to this attention.... The difficult thing is that if the older adult has capacity to make decisions then they are entitled to do what they want with their money.”
The article provides some examples of actual cases and the variation among the states on capacity to marry as well as what actions to take if the elder is a victim of this scam.
Wednesday, October 7, 2015
I previously posted a new article from Consumer Reports on the cost of financial exploitation. Consumer Reports also ran an article about whether elder abuse is preventable. Lies, Secrets, and Scams: How to Prevent Elder Abuse. Seniors and their families lose billions of dollars each year to heartless fraudsters. Learn how you can help ran September 28, 2015. The article opens with a victim of the grandparent scam. Looking at the proliferation of financial exploitation, the article notes
Estimates of the crime’s frequency vary. A 2010 survey of seniors by the nonprofit Investor Protection Trust projected that 1 in 5 seniors had been taken advantage of financially. A study last year in the Journal of General Internal Medicine found that 4.7 percent of Americans—about 1 in 20—reported that they had been financially exploited in their later years. The study provided perspective: If a new disease struck that same percentage of older Americans, researchers wrote, “a public health crisis would likely be declared.”
The article discusses why elders are targets "[o]lder people’s vulnerabilities—including isolation, loneliness, generally trusting natures, relative wealth, and in some cases declining mental capabilities—make them ideal quarry for con artists. Even those whose cognition is intact can be swayed if they’re stressed or depressed, or recently have lost a loved one." The article paints a bleak picture regarding projection, noting that s "as baby boomers age, the pool of potential victims will expand, with assets ripe for the pickpocketing." The article reviews the reasons why victims may not report the exploitation, how the perpetrators work a scam and why some victims are exploited multiple times.
The article covers some successes when the victims (or families) report the crime and initiatives to fight elder abuse, mentioning specifically the DOJ elder justice initiative. The article concludes with photos and summaries of stories of 8 victims and a list of agencies that may help.
Tuesday, October 6, 2015
California Governor Jerry Brown signed the California legislature's "right to die" act on Monday, October 5. From coverage in the San Diego Union-Tribune:
Gov. Jerry Brown, a lifelong Catholic and former Jesuit seminarian, said he consulted a Catholic bishop, two of his own doctors and friends "who take varied, contradictory and nuanced positions."
"In the end, I was left to reflect on what I would want in the face of my own death," wrote the Democratic governor, who has been treated for prostate cancer and melanoma. "I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill."
Brown's signature on the right-to-die legislation Monday capped an intensely personal debate that dominated much of this year's legislative session and divided lawmakers. Many lawmakers also drew on personal experience to explain their decisions to support or reject legislation making California the fifth state to allow terminally ill patients to use doctor-prescribed drugs to end their lives.
California joins Oregon, Washington, Vermont and Montana in permitting certain assistance in decisions to end one's life.
Does the amount $3 billion shock you:? What about $36 billion? According to an article in Consumer Reports, Financial Elder Abuse Costs $3 Billion a Year. Or Is It $36 Billion?, the exact amount is unclear. Here's how the $3 billion figure came about, according to the story:
When Consumer Reports recently reported on elder financial fraud, Lies, Secrets, and Scams: How to Prevent Elder Abuse, we used the number $3 billion. It comes from a study published in 2011 by the MetLife Mature Market Institute, in collaboration with the National Committee for the Prevention of Elder Abuse and the Center for Geronotology at Virginia Polytechnic Institute and State University. We rounded up from that study's estimate of $2.9 billion annually....
We chose that figure because a number of experts we interviewed thought it was a credible figure. But they—and an author of the study—admitted to us when we first reported it a couple of years ago that the figure probably represents the tip of the iceberg. The figure is probably far larger than that.
We have all heard the tip of the iceberg analogy with the number of cases of elder abuse, since we know that elder abuse cases are under-reported. The article goes on to explain the $36 billion figure which came from TrueLink which "projected that financial elder abuse costs families more than $36 billion a year," Their study used a more expansive view of financial exploitation, including fraud and scams as well as financial exploitation. The article notes that Investor Protection Trust estimates that 20% of elders have been victims.
The author of the article explains the title.
Though the article focuses on financial exploitation at the hands of strangers, the headline encompasses abuse by all types of con artists, including family members and people the senior knows. When discussing stranger-initiated abuse, we couldn't arrive at a figure that made sense to us. Experts I consulted through a listserve used by professionals in the elder-abuse prevention and treatment community couldn't agree on a figure themselves. However, several professionals I interviewed said they were comfortable with saying it was in the "billions."
The point of this difficult exercise is that no really one knows how big the problem is. But clearly, it's huge. And until seniors feel comfortable reporting their victimization—and there's a standard way to define it and a central place to report it—we'll never know the total impact. Here's hoping that day comes, so the individuals working to help victims and prevent the crime can get the attention and resources they deserve.
Assign this article to your students. It illuminates a number of the issues in these cases. Regardless of whether the total is $3 billion or $36 billion, the numbers are shocking.
Monday, October 5, 2015
DOJ's Elder Justice Initiative & Office for Victims of Crimes, along with the Corporation for National and Community Service announced the creation of the Elder Justice Americorps. According to the website
[E]lder Justice AmeriCorps, a new grant program to provide legal assistance and support services to victims of elder abuse, neglect and exploitation and to promote pro bono capacity building in the field. This effort will expand a partnership between the two agencies, which includes justice AmeriCorps, a legal aid program launched in 2014 by the Department of Justice and CNCS to serve vulnerable populations.
The Elder Justice AmeriCorps program, which is intended to complement existing Office for Victims of Crime grants to support the development of legal assistance networks providing comprehensive, pro bono legal services for victims of crime, will consist of a single grant to an intermediary organization that will support approximately 60 full-time AmeriCorps positions for each year of the two-year program. Interested applicants can review the Notice of Funding Opportunity at http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2016/americorps-state-and-national-grants-fy-2016#FGSAAA.
Friday, October 2, 2015
The National Consumer Voice for Quality Long-Term Care is hosting a free webinar on October 6, 2015 from 2-3:30 p.m. According to the announcement
The proposed federal nursing home regulations published by the Centers for Medicare and Medicaid Services (CMS) in July will shape nursing home care for decades to come. CMS needs to hear what consumers, their families and advocates around the country think about the rule. This is one of the most important opportunities you will ever have to impact what these new federal nursing home regulations look like. Comments are due October 14 by 5:00pm ET.
This webinar is designed to assist advocates in understanding the proposed changes and in participating in the comment process.
Eric Carlson of Justice in Aging and Robyn Grant of the Consumer Voice are the presenters. To register for this webinar, click here.
Thursday, October 1, 2015
The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.
Following the Michigan Court of Appeals' 2014 ruling in Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks. Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.
In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions. Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."
The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."
October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 30, 2015
Jeff Guo, writing for the Washington Post, recently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:
Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....
But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”
Here is where tontines come in. If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.
A simple modern tontine might look like this: At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever. Every year, the group withdraws a predetermined amount and divides it among the remaining survivors. You might get a bonus one year, for instance, because Frank and Denise died....
Want to know more? Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement. Hat tip to David Pearson for sharing this story.
Tuesday, September 29, 2015
Over the weekend I caught an interview with Brian Liu, co-founder of LegalZoom, broadcast on From Scratch, a radio show about "entrepreneurial life." The host, Jessica Harris, who has an interesting business background of her own, is a very good interviewer, encouraging guests to explore strengths and weaknesses of their ideas, moving from first inspiration to current goals. She also asks "work/life balance" questions, often getting candid admissions of the private struggles some have to achieve balance.
I was intrigued with Liu's central premise, that his company does not compete, at least not directly, with law firms for business. Rather, he believes that the vast majority of clients are drawn to his company precisely because they would never go to a lawyer, whether because of cost, unease about attorneys, or perceptions about value.
It was also interesting to hear that Legal Zoom's first ten clients, accessing the company's on-line document portal on a Friday night, were seeking "living wills." That fact tells us a lot about underserved legal and health care needs, doesn't it.
September 29, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Web/Tech | Permalink | Comments (0)
Thursday, September 24, 2015
If you have worked in Elder Law long enough, you have probably received a panicked call from a family caregiver who is unprepared for a loved one to be discharged on short notice from hospital care.
On September 22, the Pennsylvania Capitol in Harrisburg was crowded with individuals wearing coordinated colors, showing their support for Pennsylvania Caregivers, including family members who are often struggling with financial and practical challenges in caring for frail elders. Here's a link to a CBS-21-TV news report, with eloquent remarks from Tamesha Keel (also pictured left), who has first-hand experience as a stay-at-home caregiver for her own aging mother. Tamesha recently joined our law school as Director of Career Services.
AARP helped to rally support for House Bill 1329, the Pennsylvania CARE Act. The acronym, coined as part of a national campaign by AARP to assist family caregivers, stands for Caregiver Advise, Record and Enable Act. HB 1329 passed the Pennsylvania House in July 2015 and is now pending in the Pennsylvania Senate.
We have written on this Blog before about pending CARE legislation in other states. A central AARP-supported goal is to achieve better coordination of aftercare, starting with identification of patient-chosen caregivers who should receive notice in advance of any discharge of the patient from the hospital. Pennsylvania's version of the CARE Act would require hospitals to give both notice and training, either in person or by video, to such caregivers about how to provide appropriate post-discharge care in the home.
I'd actually like to see a bit more in Pennsylvania. It is unfortunate that the Pennsylvania CARE Act, at least in its current iteration (Printer's Number 1883), does not go further by requiring written notice, delivered at least a minimum number of hours in advance of the actual discharge. AARP's own model act suggests a minimum of 4 hours, consistent with Medicare rules.
Under Federal Law, Medicare-participating hospitals must deliver advance written notice of a discharge plan, and such notice must explain the patient's rights to appeal an inadequate plan or premature discharge. A timely appeal puts a temporary hold on the discharge. See the Center for Medicare Advocacy's (CMA) summary of key provisions of Medicare law on hospital discharges, applicable even if a patient at the Medicare-certified hospital isn't a Medicare-patient. CMA's outline also suggests some weaknesses of the Medicare notice requirement.
AARP's original CARE Act proposals are important and evidence-based, seeking to improve the patient's prospects for post-hospitalization care through better advance planning. At the same time, there's some irony for me in reading the Pennsylvania legislature's required "fiscal impact" report on HR 1329, as it reports a "0" dollar impact. That may be true from the Pennsylvania government's cost perspective, but for the hospitals, to do it right, whether in person or by video, training is unlikely to be revenue neutral. I think we need to talk openly about the costs of providing effective education or training to home caregivers.
If passed by the Senate, Pennsylvania's CARE Act would be not become effective for another 12 months. The bill further provides for evaluation of the effectiveness of the rules on patient outcomes.
As is so often true, states are constantly juggling the need for reforms to solve identified problems, with the costs of such reforms. Perhaps the current version of the Pennsylvania bill reflects some compromises among stakeholders. According to this press statement, the Hospital and Health System Association of Pennsylvania supports the current version of AARP's Pennsylvania CARE Act.
September 24, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)
The Huffington Post blog recently carried a post from Paul H. Irving, of the Milken Institute Center for the Future of Aging and a Distinguished Scholar in Residence at the USC Davis School of Gerontology. Professor Irving opens his blog post, Why Technology Is The Catalyst For A New Era Of Aging In Place, with a reference to the movie, 2001 A Space Odyssey and a mention of a recent report from the Milken Institute with the finding that most older Americans want to age in place at their homes. "Technological advances may be an answer to that challenge." Here's why he thinks so. Professor Irving writes
The proliferation of the "Internet of things" is in full swing, and older adults will be beneficiaries. Wearables and digital devices monitor health and movement data and enhance safety. Phones, computers and social networks provide connections to family, friends, physicians and caregivers, and almost instant access to a wide range of products and services. Virtual workplaces and distance learning elevate knowledge, productivity and purpose. Thoughtful architecture and computer-assisted design create new-generation homes that are built to accommodate aging, with navigable floors, doorways and rooms, counter heights for standing or sitting, thermostats that are easy to set and entertainment options that would have been unimaginable a generation ago. Older adults can look to technology for help in preparing meals and ensuring that the right medicine is taken at the right time. Tuned to particular needs and preferences, home environments will be customized and personalized as technological innovation brings out the best of both human and machine.
Recognizing as well that local governments play a role in successful aging in place, Professor Irving discusses the need for a community to provide services, transportation, etc. After noting that it will take time to move communities in this direction, he concludes that "[a]ll ages have a stake in this -- and the true beneficiaries of these advances may well be aging generations to come. In the meantime, as concerns about the impacts of technology weigh on some, we should celebrate technology's potential to empower older adults and brighten the future of aging."
Wednesday, September 23, 2015
Pew Research Center recently issued a new report examining internet use over the past 15 years. Americans’ Internet Access: 2000-2015 looks at uses of the Internet by different groups, based on age, education, income, gender and other factors. More than half of elders are going on line, according to the findings published in the report ("[o]lder adults have lagged behind younger adults in their adoption, but now a clear majority (58%) of senior citizens uses the internet.") How fast are elders adopting Internet use? This figure puts it in perspective for us: "14% of seniors used the internet in 2000, while 58% do so today. Not until 2012 did more than half of all adults ages 65 and older report using the internet."
This is important information on several levels. With the push for the use of "elder-tech" to help folks age in place and many government agencies placing information on the web, consider how comfortable digital immigrants are with various technologies. The internet of things can be wonderful, if one does go online...
Another report from Pew notes that yes, there are those who do not go online! 15% of Americans don’t use the internet. Who are they? Well if you are reading this blog, we know that you aren't among that 15%. For our purposes, looking at the data on age and internet use, the report provides that "[s]eniors are the group most likely to say they never go online. About four-in-ten adults ages 65 and older (39%) do not use the internet, compared with only 3% of 18- to 29-year-olds." As noted above, elders are adopting the internet at a faster rate in the past 15 years. "Over time, the offline population has been shrinking, and for some groups that change has been especially dramatic. For example, 86% of adults 65 and older did not go online in 2000; today that figure has been cut in half."
Sunday, September 20, 2015
The NY Times ran an article at the beginning of the month about the rising premiums for long term care insurance policies. Managing the Costs of Long-Term Care Insurance notes that New Yorkers with policies are seeing "double-digit increases in the premiums," not the first policy holders to do so.
Insurance regulators in many states have been approving large increases in long-term care premiums for older policies, as it became clear that insurers badly misjudged the pricing on the policies and are losing money on them. In particular, regulators say, insurers overestimated the number of consumers who would let their policies lapse before filing any claims. That means more people are holding on to the policies, raising the likelihood of more claims.
The story notes that some policy holders have received notices of premiums increasing by 48-60% although some lower increases are occurring, especially with changes to the existing policies. Some companies no longer sell new policies, according to the story, but seek rate increases on existing policies.
Wednesday, September 16, 2015
I always spend some time in my elder law class discussing different methods of property ownership including the use of joint accounts. Many of my students may themselves be named jointly with someone on a bank account. In working through the pros and cons of the use of joint accounts, I strive for my students to understand why some clients may title their property jointly and the implications of doing so. I was please to find this easy to understand infographic on joint accounts. Published by AARP and the American Bankers Association Foundation, Look Before You Leap. Is a Joint Account Right for Me? packs a significant amount of information in one page. The infographic covers the reasons people choose joint accounts, what one needs to know before making the choice, and alternatives to joint accounts.
It's a great tool for our classes!
BTW, the ABAF also has a campaign on educating elders and caregivers, Safe Banking for Seniors. You can sign up for email announcements for updates, etc. about the campaign.
Tuesday, September 15, 2015
As we have tracked recently on this Blog, in a number of states, including Florida and Nevada, serious questions have been raised about the roles of guardians for disabled and elderly persons, and the extent to which there should be public oversight of guardians, especially "paid" guardians, including public guardians, "professional" guardians or "private" guardians.
In Florida, newly proposed legislation, Senate Bill 232 (filed in September 2015) would seek to clarify state oversight of all guardians, following on the heels of amendments to Florida state law enacted in mid-2015. Florida's legislature may take up the latest bill early in 2016, according to media reports. Key provisions in the bill include:
- renaming of the current office of "public guardianships," with expanded duties and responsibilities, to create the "Office of and Professional Guardians;"
- addition of findings about the potential need for a "public guardian" where there is "no willing and responsible family member or friend, other person, bank, or corporation available to serve;"
- a requirement that "professional" guardians "shall" register with the state;
- directions to establish a comprehensive system for receipt and state action on complaints made about professional guardians.
From reading SB 232, it seems to me there may be some attempt to appease the concerns about the potential for overregulation of so-called "professional" guardians, as new language in Section 744.2001 requires development and implementation of a new "monitoring tool to ensure compliance of professional guardians with standards" set by the Office, but this "monitoring tool may not include a financial audit " as specified in another section of the law (emphasis added).
Funding will be needed to make expanded oversight effective.
September 15, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 14, 2015
As we have reported earlier on this Blog, CMS is seeking comments on proposed Medicaid rules affecting nursing facilities, including proposals that could affect the use of pre-dispute "arbitration" agreements. Justice in Aging provided the helpful update that the comment period has been extended to October 14, 2015. In addition, Justice in Aging has provided a link to model or sample comments to use clarify consumer concerns.
Here is a link to the CMS extension notice. Here is a link to important information about commenting on key aspects of the proposals, prepared by The National Consumer Voice for Quality Long-Term Care.