Tuesday, June 21, 2016

New Concepts from Authorities Who Investigate and Prosecute Scammers and Financial Abusers

On June 15,  I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders.  It was very good.  Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation.  Here were some of the "take away" messages I heard:

  • "Age 78" -- why might that be important?  Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch."  As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment"  creates the "happy hunting ground" for the scammer.
  • "I make 'em feel like they are Somebody again."  That's how one scammer explained and rationalized his approach to older adults.  By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again.  That "reaction" by the older  consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money."  Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
  • "Psychological reactives."   That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish."   An indirect, oblique approach may be necessary to help the victim understand.  One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses. 
  • "Financial Institutions are increasingly part of the solution."  According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or  by making "all individuals" who suspect such fraud mandatory reporters.  Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.

The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse.  One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation." 

June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)

Wednesday, June 15, 2016

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.

 

It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....

 

When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 14, 2016

Elder Abuse in Florida

The Orlando Sentinel ran a story about elder abuse increasing in Florida. Although the data is hard to come by, Elder Abuse on the Rise in Florida explains that:

In Florida, the number of verified cases of elder abuse and neglect has climbed 74 percent since 2011, according to the Florida Department of Children and Families. In 2015, the statewide total was 2,525.

More than 800 people have been charged with elder abuse and neglect in Florida in the past five years, according to the Office of State Courts Administrator. More than 370 have been convicted or sentenced.

The story also offers data on a nationwide basis and discusses the difficulties in prosecuting elder abuse cases, such as the victim's close ties to the perpetrator or cognition issues of the victim

The accompanying sidebar provides statistics, Elder Abuse in Florida by the Numbers for the past 5 years, broken down by verified cases of elder abuse or neglect and criminal elder abuse or neglect.

June 14, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 9, 2016

What Are Physicians' Responsibilities for Older Patients with Firearms?

Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us.  Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.

Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition.  He writes:

In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.

 

Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.

Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:

Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).

On free speech implications, he writes:

The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.

And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:

State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.

The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.  

June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 8, 2016

Good News in Fighting Frauds

Hopefully none of the readers of this blog have ever been a victim of a consumer scam, had their identities stolen, or know someone who has been a victim. That said, it is unfortunately likely that we all know someone who has been a victim of a scam. But there is good news on an international front regarding a scam that required victims to send money in order to claim their "winnings".

An article about efforts from U.S. and Dutch law enforcement efforts explain that FIOD and US DoJ conduct simultaneous operations against worldwide multi-million euro fraud with false letters. The article explains Dutch law enforcement is seizing mail from 300 mailboxes and is investigating 6 companies. At the same time DOJ filed suit "against two of the suspected companies and one director in the Netherlands, on behalf of hundreds of thousands of victims." Here's how this scam worked

[T]he main suspects sent millions of letters to people in the United States, Great Britain, Switzerland, Italy, France, Japan and many more countries. In the letters, addressed to people personally, the recipients were made to believe that they had won an award in the amount of money or a check, which they had not claimed yet. Another example was that the sender of the letter intended to give money to the recipient as an act of charity. In addition, letters were sent which stated that the recipient was a guaranteed winner in a lottery. To be able to transfer the money to the recipient, the latter had to send a cash amount of between 20 and 45 euro or a cheque, each time to a mailbox in the Netherlands.

In various letters, approximately 300 different mailbox numbers in the Netherlands were mentioned. Allegedly, the six suspected Dutch companies, which are the subject of the FIOD-investigation manage a large part of the mailboxes, empty them and process the mail. Presumably, the companies were allowed to keep part of the money as payment for services rendered, but the larger part of the money was transferred to bank accounts, which allegedly belonged to the main suspects of the fraud.

The DOJ press release is available here which also includes a link to the complaint filed in federal court.  Kudos to U.S. DOJ and to the Dutch law enforcement agency for excellent work!

 

June 8, 2016 in Consumer Information, Crimes, Current Affairs, Federal Cases, International | Permalink | Comments (0)

Monday, June 6, 2016

Free Webinar on June 15: Financial Frauds & Scams Against Elders

The National Consumer Law Center, working in cooperation with the Administration for Community Living and the National Legal Resource Center will host a free webinar on Financial Frauds and Scams Against Elders: Government Responses and Resources on Wednesday, June 15, 2016 from 2 to 3:30 p.m. (Eastern Time).  The presenters are Naomi Karp, Consumer Financial Protection Bureau and David Kirkman, Consumer Protection Division for the North Carolina Department of Justice.

This webinar will examine the fraud and scams aimed at elders, the traits that make elders vulnerable, and state and local government responses. This webinar will also discuss the Consumer Financial Protection Bureau's (CFPB) recent Advisory and Recommendations to financial institutions on preventing and responding to financial exploitation, as well as other CFPB resources available to attorneys, advocates and service providers.

On-line registration is required, but it looks like you can register at the last minute, although there is a maximum limit on the webinar -- 3,000 attendees!  

June 6, 2016 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Webinars | Permalink | Comments (0)

Tuesday, May 24, 2016

Sad Story-Lack of Money for Medications Ends in Spouse's Death

A very sad story hit the news last week.  A Florida man killed his chronically ill wife because they couldn't afford her prescriptions. Florida Man Says He Killed Sick Wife Because He Couldn’t Afford Her Medicine, Sheriff Says explains that the husband in the over 50 year marriage told the law enforcement officer who responded to the call that "[t]he cost of her medications had become so burdensome that they could no longer afford it ... [s]o on Monday morning while she was sleeping, he shot her in the head...." According to the article the husband has been charged with premeditated first degree murder.    A representative of the Sherriff's office was quoted as saying that the husband "was perfectly clear on that he was going to be arrested and go to jail, but again, he felt that this is where it had gotten to him and this was his course of action...  showed emotion and he was very clear that he was out of options in his mind.” At the time of the story, according to the article, there was no information about their health insurance status.

This story notes the issues with elders on fixed incomes and the costs of medications. There have been stories in the press of late about price spikes in certain medications and the Senate Committee on Aging has held two hearings this year on the topic, available here and here.

May 24, 2016 in Crimes, Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Monday, May 9, 2016

New Article-Preventing DPOA Abuses

The May 2016 issue of the South Carolina Bar Journal, SC Lawyer contains the article, Quick and Dirty Tips to Prevent Power of Attorney AbuseThe author offers several tips, starting with meeting with the client alone, determine if the client has capacity to sign the DPOA, ascertain the client's goals and expectations, "name an honest, trustworthy and trusted agent" (the author suggests the attorney "[google the agent and check your local court judgment index"); consider co-agents; use a springing POA; include an accounting provision to require the agent "to account in some fashion to a family member(s) or other trusted individual. It can be as formal or as informal as the principal desires. In that way there is another person informed about the principal’s financial situation" and even using a "cooling off" period for the client to think further before signing the DPOA.

The article also covers actions when the agent misuses the DPOA. The article concludes

There is no easy answer to the problem of elder financial abuse. There is no silver bullet. Elder financial abuse is a problem that is only going to get worse. We as attorneys can’t prevent all financial abuse, but we need to be aware of, and adopt, measures that reduce the risk of durable power of attorney abuse. The threat can never be eliminated, but with communication and education, it can be minimized.

 

Thanks to the article's author, Michael J. Polk, for sending me the link to the article.

 

May 9, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, April 12, 2016

Does the Statutory Definition of "Elder Abuse" Matter?

In April 2016, Senators Richard Blumenthal (D-CT), Bob Casey (D-PA), Sheldon Whitehouse (D-RI) and Al Franken (D-MN), introduced Senate Bill 2747 in the United States Senate.  Carrying the title of "Elder Protection and Abuse Prevention Act," one provision of the bill would amend existing federal law to redefine "abuse," as that phrase is used in the Older Americans Act.  The new definition would read:

The term "abuse" means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.

The existing language, defining abuse, provides: 

The term “abuse” means the willful--
(A) infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish; or
(B) deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.
 
Is the proposed change mere semantics? 
 
A quick search reveals that the new federal language is identical to language contained in at least one state's statute, Rhode Island's Section 42-9.2-2, used to define the scope of administrative authority for the state's Elder Justice Prosecution Unit.  One of the sponsors of the new bill is from Rhode Island.  
 
However, Rhode Island's criminal statutes do not provide an exact match.  Rhode Island law does provide that it is a crime for any person "primarily responsible for the care of an adult with severe impairments" to "willfully an knowingly abuse, neglect or exploit that adult," and it defines "abuse" as "subjection of an adult with a severe impairment to willful infliction of physical pain [or] willful deprivation of services necessary to maintain the physical or mental health of the person, or unreasonable confinement."  But, by removing any age restriction but narrowing the crime to victims with "severe impairments," there is room for argument about application of that statute to all elderly victims, or those with "only" early stages of physical or mental impairment.  
 
So, what is the reasoning behind the proposed change of the federal definition of "abuse?" Abuse of an elder person is not a "federal" crime.  Certainly it would be useful to have the definition match any funding authorization, and  perhaps that is a reason, as the new language mirrors the definition of abuse contained in the Social Security Act's provision for block grants to states for social services and elder justice initiatives, at 42 U.S.C. Section 1397j(1).

April 12, 2016 in Crimes, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)

Monday, April 11, 2016

When Remittiturs in Nursing Home Awards Trigger Inquiry into Campaign Finances for Judges...

I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old.  Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements.  See e.g. here and here.  However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.  

In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case.  Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.  

In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system."  Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.  

By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million.  The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015. 

The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.

April 11, 2016 in Consumer Information, Crimes, Ethical Issues, Federal Cases, State Cases | Permalink | Comments (0)

Wednesday, March 23, 2016

Victims Oppose California's Elderly Parole Program

My colleague Becky Morgan shared a good item this week on statistics about the number of elderly inmates, with growth of needy inmates increasing the burden on state prisons.

Another perspective on the issue comes this week via the San Jose Mercury News, reporting on California's Elderly Parole Program:

The Elderly Parole Program was instituted by a federal three-judge panel after a 2013 class-action lawsuit successfully argued that conditions in California's overcrowded prisons, including poor health care, amounted to cruel and unusual punishment. As a result, the court ordered California to reduce its inmate population. The Elderly Parole Program and a realignment program to move nonviolent convicted felons back to county jails are among the solutions. The Elderly Parole Program will be in effect at least until California meets its prison population targets.

 

In Sacramento, prosecutors and victims rights groups have been working to prevent this temporary program from becoming state law. They scored a small victory last week when, after a call from this newspaper, state Sen. Mark Leno, D-San Francisco, gutted Senate Bill 1310, which he introduced last month. The original bill would not only make the Elderly Parole Program state law, but it would also lower the eligibility age to 50 and the time in prison to 15 years.

 

The withdrawal was unexpected and came with little explanation. Leno said in a statement Thursday that the bill would be used as a place holder for "other criminal justice reforms" and that "the bill will not deal with the issue of elder parole."

 

The article reports that since the Elderly Parole Program began in February 2014, more than 1,000 inmates have had parole hearings, with 371 granted parole, 89 deemed "not ready," and 781 denied release.  In the article, the reality of the hearings is seen through the eyes of one victim, who faced the trauma of attending a parole hearing to argue that the man who sexually assaulted her and others some 30 years ago, should serve his full sentence or die in prison -- 141 years.

No easy answers here.  For more read, "California's Elderly Parole Program Forcing Victims to Face Attackers Decades Later."   

March 23, 2016 in Crimes, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Friday, March 11, 2016

Elder Abuse in Australia

Elder Abuse knows no geographic boundaries, as a recent story in the Brisbane, Australia Times showed. Australia's ageing population prey to abuse was published on February 24, 2016 and explains

The abuse of older people is likely to worsen as Australia's population ages and relatively wealthy baby boomers become vulnerable to mercenary family members and carers.

The federal government is "appalled" at the extent of elder abuse and has asked the Australian Law Reform Commission to find ways to safeguard older Australians....

The article discusses the number of victims, risk factors, and perpetrators. Similar to the U.S., Australia doesn't have good data on elder abuse as far as how big a problem it is, "has to extrapolate from international research. "We say that it frequently is a form of family violence - because it happens within families - but the significant difference is that it's most often between generations," said Jenny Blakey from Seniors Rights Victoria. "  The 4th annual national conference on elder abuse  was held in Melbourne, Australia in late February. More information about the conference can be found here.

March 11, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, International, Programs/CLEs | Permalink | Comments (0)

Tuesday, March 8, 2016

Justice Obtained-Guilty Plea in Romance Scam!

The Justice Department in the Southern District of Illinois issued a press release on March 3, 2016 announcing a perpetrator in the midst of trial changed his plea to guilty. Nigerian Scammer Convicted Of On-Line Romance Fraud notes that the perpetrator, the ringleader, pleaded guilty to all charges. He was arrested in London in 2014 and at trial, "'the evidence established that [the perpetrator], a citizen of the Federal Republic of Nigeria, was the ringleader of a criminal organization operating within South Africa that targeted and stole from hundreds of women across the United States, including dozens in the St. Louis metropolitan area." noted Acting United states Attorney Porter. "Our office will continue to pursue justice for these victims in [the perpetrator's] prison sentence and in our never-ending efforts to get restitution."'

Sentencing is set for early in the summer, and  "[b]y statute, [the perpetrator] faces a maximum prison sentence of 127 years, a fine of $250,000 on each of the eight counts of the indictment, and as much as five years of supervised release. He will also be required to pay restitution to the victims of his crimes."

March 8, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, International | Permalink | Comments (0)

Tuesday, February 23, 2016

Only Limited Authority as Health Care Agents? The Latest Grounds to Challenge Dreaded Arbitration Clauses in NH Cases

The New York Times offers another window into concerns about pre-dispute binding arbitration provisions that are routinely found in nursing home agreements.  This is a long-simmering war, with many battlefronts and tactical arguments, as documented in the article.  However, the article also focuses on a narrow group of cases where courts have rejected a binding effect for arbitration clauses signed by someone serving "merely" as a health care agent for the incapacitated resident. (I hope my Contracts course students this semester are reading this article!)  

The article offers an additional opportunity to consider the tensions between public policies on either side of the debate over "fairness" of arbitration as a forum for consumer claims:

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans.. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

 

State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.

 

Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.

 

Mr. Barrow’s case [set for trial in Massachusetts] is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back. As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf.

 

Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration.

For more, read Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?

Our thanks to attorneys Karen Miller in Florida and Morris Klein in Maryland, plus Dickinson Law students Joe Carroll, Corey Kysor and Kadeem Morris in Pennsylvania for sending us the link to the NYT coverage.

February 23, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)

Tuesday, February 16, 2016

New York Summer Internship Opportunity for Law Students Interested in Protection of Older Adults

Our friends at the Weinberg Center for Elder Abuse Prevention sent application information for law students interested in a summer 2016 internship in New York:

The David Berg Center for Law and Aging is seeking select students for its Summer 2016 internship programs. The Center focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation. 

 

Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale.  Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse. 

 

Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will potentially be exposed to legal practice in all five boroughs of New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse. 

 

Past issues have included HIPAA regulations, questions surrounding legal capacity, immigration, powers of attorney, Medicaid eligibility, copyright, and right to privacy.  The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters.  The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. To apply, please send a resume, cover letter and writing sample to deirdre.lok@hebrewhome.org.

February 16, 2016 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Grant Deadlines/Awards, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, February 10, 2016

Criminal History Not Bar to Employment in SNF In Pa.

Elderlawprof blog founder, elderlaw prof extraordinaire and renaissance woman, Professor Kim Dayton sent the following article Nursing homes free to hire applicants with criminal histories; Pennsylvania won't appeal decision striking down law .  According to the article, the state has decided not to appeal a decision striking a Pennsylvania law  that "prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories." The article explains that the law contained a lifetime employment ban in the state's APS statute.  Part of the challenge to the law is that the statute didn't differentiate  between the types of crimes, circumstances or even when the crime was committed, so something minor or a crime committed decades ago would count in imposing the lifetime ban.

The opinion is available here.

February 10, 2016 in Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 8, 2016

Not Another Social Security Scam

Yes, another Social Security Scam is making the rounds. The AARP Fraud Watch Network alerted folks about a new scam that the FTC has discovered. According to the Fraud Watch explanation,  people are being sent

an email with the subject line “Get Protected.” ...  The email describes that the Social Security Administration (SSA) is supposedly offering great new features to help taxpayers protect their personal information and identities. It sounds so good that you may be tempted to click on the link provided — [don't do so]  ...It’s a SCAM!

The scammers pose as SSA employees and to be even more authenticate-sounding, may even mention the “SAFE Act of 2015.”  Of course, the email includes a link, and we all know what happens when one clicks on a link in a scam email....bad things.

The FTC alert, with helpful information on how to spot scams, is available here.  To sign up for blog alerts from the FTC, click here.

 

 

February 8, 2016 in Consumer Information, Crimes, Current Affairs, Retirement, Social Security | Permalink | Comments (0)

Sunday, February 7, 2016

Senate Special Committee on Aging Upcoming Meeting

The Senate Special Committee on Aging has a meeting scheduled for 2:30 p.m., est on February 10, 2016. The topic of this meeting is "to examine a new scam by global drug traffickers perpetrated against our nation's seniors." Stay tuned for more information

February 7, 2016 in Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, International | Permalink | Comments (0)

Thursday, February 4, 2016

New Brochure-Caregiver Advocates

The National Center on Elder Abuse (NCEA) sent an email to the elderabuse listserv on February 4, 2016 that announced the release of a new brochure for family caregivers on how to advocate for those in their care with dementia.  The email announcement explained that the

material was created by the USC Department of Family Medicine, with funds provided by the Archstone Foundation, and was developed using input from actual family caregivers of people with dementia through informant interviews and focus groups. The brochure provides information about elder abuse, tips for caregivers on how to protect and advocate for their loved ones, real life scenarios, and resources. The goal of this brochure is to help family caregivers of people with dementia to learn how to take care of themselves in order to prevent mistreatment....

The brochure explains elder mistreatment, offers tips on advocating for and protecting relatives with dementia and provides helpful contacts along with examples. The web version is available here and the print version, here.

 

February 4, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Webinar: Addressing Financial Abuse of Low-Income Elders

Attorneys from Justice in Aging and Pro Seniors, Inc., with support from a grant from the Administration for Community Living, are offering a free webinar that targets the way in which older adults can lose benefits such as Social Security, SSI or Medicaid because of the actions by others who prey upon them.  

The Webinar on "Recognizing and Remedying Elder Financial Abuse in Medicaid Denials" is on Tuesday, February 16, from 2 to 3:30 p.m. EST, and is part of a series on protection of older adults from abuse for the National Legal Resource Center, working in conjunction with the National Consumer Law Center.

Here's a link to the registration page -- and again it is free!  

February 4, 2016 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Webinars | Permalink | Comments (0)