Sunday, August 17, 2014
The Washington Post ran a fascinating article on a particular Medicare scam. A Medicare Scam That Just Kept Rolling was published August 16, 2014 and focuses on power wheelchairs. The article offers a detailed look at how this particular scam worked.
The wheelchair scam was designed to exploit blind spots in Medicare, which often pays insurance claims without checking them first. Criminals disguised themselves as medical-supply companies. They ginned up bogus bills, saying they’d provided expensive wheelchairs to Medicare patients — who, in reality, didn’t need wheelchairs at all. Then the scammers asked Medicare to pay them back, so they could pocket the huge markup that the government paid on each chair.
This eye-opening article points out that the depth and breadth of the scam remains largely unknown, but is on its way out.
But, while it lasted, the scam illuminated a critical failure point in the federal bureaucracy: Medicare’s weak defenses against fraud. The government knew how the wheelchair scheme worked in 1998. But it wasn’t until 15 years later that officials finally did enough to significantly curb the practice.
The article is accompanied by a video that shows in "four easy steps" how to perpetrate a Medicare scam as well as a sidebar with slides showing how the power wheelchair scam works. Variations of the scam are more than 40 years old and have morphed with the times.
If you aren't shaking your head in wonder now, consider why these scams can happen:
[F]or Medicare officials at headquarters, seeing the problem and stopping it were two different things.
That’s because Medicare is an enormous system, doing one of the most difficult jobs in the federal government. It receives about 4.9 million claims per day, each of them reflecting the nuances of a particular patient’s condition and particular doctor’s treatment decisions.
By law, Medicare must pay most of those claims within 30 days. In that short window, it is supposed to filter out the frauds, finding bills where the diagnosis or the prescription seem bogus.
The way the system copes is with a procedure called “pay and chase.” Only a small fraction of claims 3 percent or less — are reviewed by a live person before they are paid. The rest are reviewed only after the money is spent. If at all.
The whole thing is set up as a kind of honor system, built at the heart of a system so rich that it made it easy for people to be dishonorable.
The article talks about comparisons--the amount of money spent on power wheelchairs as compared to the total amount of dollars spent in the Medicare universe and although the amount spent on wheelchairs is a lot, it's a small amount in that universe. The article mentions the steps the government has taken to end the motorized wheelchair scam such as competitive bidding and rent-to-own. So if the wheelchair scam is on the decline, what's the next one? According to the article, orthotics and prosthetics. Stay tuned...
Thursday, August 14, 2014
University of Memphis Law Professor Andrew Jay McClurg's article, "Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation," appears in May 2014 issue of the Hastings Law Journal. Professor McClurg proposes that states adopt "state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders." In correspondence, Professor McClurg points to the fact that on the surface it may appear that older persons -- victims -- are "voluntarily" parting with assets, when "in fact [the transactions] occur because of undue influence, psychological manipulation and misrepresentation."
Professor McClurg stresses the need for a statutory presumption to give prosecutors an effective tool to hold offenders accountable. His proposal has already had direct impact, in the form of Florida legislation, Fla. Stat. 825.103(2) signed into law June 20, 2014 and effective on October 1, 2014. Key language from the provision includes:
"Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transfer or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation."
The Florida provision applies "regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates...." Further, the new Florida provision does not apply to "persons who are in the business of making loans" or "bona fide charitable donations to nonprofit organizations that qualify for tax exempt status."
In cases tried to a jury under the Florida statute, the law provides that jurors "shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection." The law's presumption "imposes no burden of proof on the defendant."
UPDATE: Professor McClurg wrote again to explain that he worked directly with the Florida Elder Exploitation Task Force and with Florida Representative Kathleen Passidomo to secure passage of the new law. Professor McClurg's presumption proposal was introduced as part of H.B. 409, which passed unanimously through the two houses of the state legislature. According to Professor McClurg, the statute is the only one of its type in the nation. Thanks for the clarification, Andrew!
Friday, July 25, 2014
The Consumer Rights Litigation Conference, put on by the National Consumer Law Center (NCLC), is set for November 6-9 in Tampa Florida. This is the preeminent program for consumer rights advocates and there are several sessions with a special focus on protection of older persons. Sessions include:
"Reverse Mortages: New Changes and Old Challenges to Foreclosure," with Odette Williamson and Margot Saunders, NCLC, focusing on "emerging issues in reverse mortgages, including the new 'ability to pay' determinations and protections for dispossessed spouses." (Friday morning, Nov. 7)
"Retirement Benefits and Bankruptcy, Do they Mix?" by Tara Twomey (NCLC), asking whether a "fresh start jeopardizes the debtor's ability to receive social security benefits" and to what extent are "retirement savings off the table for nonsecured creditors." (Saturday morning, Nov. 8)
"Challenging Financial Fraud and Scams Aimed at Older Adults," by David Kirman (North Carolina Department of Justice) and Stephan A. Weisbrod (Weisbrod, Mattis & Coply PLLC), examining legal tools that can be used to challenge these practices, including private actions and suits brought under state statutes, such as California's Financial Elder Abuse Act. (Saturday afternoon, Nov. 8)
Thursday, July 24, 2014
The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one). In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized that perhaps it really has five halves. See what you think.
- In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death. Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults. They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.
- Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms. They have critical skills and knowledge of health-related benefits under federal and state programs. They also have sophisticaed information about the availability of income-related benefits under Social Security. They often serve the most needy of elders. Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play.
- At the state and federal levels, core decisions are made about how to interpret laws affecting older adults. Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse.
- A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of contracts, insurance and public benefit programs that pay for such services.
- Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families. My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.
Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together.
My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging, I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school. Organizing these "halves" may also help in organizing course materials.
I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law. What am I forgetting?
Tuesday, July 15, 2014
Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11. There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law.
I learned that there is a strong research network on law and ageing topics in Australia, ARNLA. Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries. Several of the Australian participants reported on recent research or works in progress.
For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia. She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal. Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach.
Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."
Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria. I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties. The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.
Thursday, July 10, 2014
One of the effects of "devolution" in the United Kingdom has been opportunities for Northern Ireland, Wales and Scotland to consider afresh their domestic laws and policy guidelines, separate from the mandates of Parliament in London. As those following recent UK news will know, Scotland this has gone beyond mere "home rule." A referendum vote on full independence is scheduled in Scotland for September 18, 2014.
Northern Ireland has not moved as quickly on adoption of domestic laws and policies. In part because of interruptions in efforts to fully establish home rule following disruptions of violence and the "Troubles," the process of enacting NI domestic laws has been slower paced than in Wales or Scotland, even after the Good Friday Agreement of 1998.
Nonetheless, high on the domestic agenda in NI have been laws and policies related to older people. One of the first modern era laws passed by Stormont was domestic legislation that established an independent Commissioner of Older People for NI. The discussions on that law overlapped with my Fulbright year and sabbatical in NI in 2009-10, and resulted in passage in January 2011.
The first Commissioner, Claire Keatinge, was appointed to a four year term in November of 2011. In my observation, Claire is a force of nature and if anyone can create a clear path to establish ageing as a priority matter for action in NI, it will be this dynamo.
On June 25, Commissioner Keatinge presented her call for fresh adult safeguarding legislation in NI. With emerging data suggesting significant increases in the number of cases of alleged abuse of older people, Commissioner Keatinge commissioned an evaluation of existing laws and comparative approaches in other nations. She asked whether and how NI can better protect adults from abuse, including physical, emotional, sexual and financial abuse. After receipt of the academics' report, her in-house legal team responded, helping her present a clear written call for action, a template for legislation.
As explained in her launch on June 25, the Commissioner advocates for:
- Clear definition of "adult at risk," the target term for safeguarding measures and not limited to older adults, as well as enhanced definitions of abuse or harm, and especially of financial abuse;
- Establishment of an adult safeguarding board, with statutory powers;
- Specific duties for relevant bodies and organizations within NI to report, investigate, provide services and cooperate with other agencies to order to better protect "adults at risk;"
- Specific powers of access to an individual believed to be at risk of harm or abuse, to defuse the potential for the abuser to influence the investigation process; and
- Protection from civil liability for those making reports of suspected abuse.
Further, Commissioner Keatinge recommends additional consideration be given to whether an Adult Safeguarding Bill -- as a single piece of legislation -- should grant specific powers to authorities to remove an individual at risk or ban a suspected abuse from contact. Her call for action recommends consideration of a specific grant of power to access financial records, often deemed crucial to investigation of financial risk and proof of abuse. Also on the Commissioner's radar screen is the potential adoption of specific criminal charges for "elder abuse" or "corporate neglect."
It has been exciting for me to see the evolution of the Commissioner's role and her use of the Queens University Belfast and University of Ulster academic reviews (on which I consulted). Professor John Williams (depicted on the far left, next to Claire Keatinge in yellow), head of the department of law and criminology at Aberystwyth University in Wales provided forceful support for the proposed legislation in Northern Ireland during his commentary at the launch, saying the status quo cannot be justified.
I'd like to say I see an easy path for a comprehensive Adult Safeguarding Law to emerge in the near future for Northern Ireland, thus serving as a role model for other jurisdictions facing similar issue.
I have to admit, however, that I was discouraged by what sounded -- at least to me -- like vacillation coming from key government leaders. The Minister of Health, Social Services and Public Safety in the Northern Ireland Executive, Edwin Poots (above, in the blue tie). spoke at the Commissioner's launch, expressing his own concern for older people as victims of abuse, especially financial abuse; however, I was disappointed when Minister Poots predicted that it would not be possible for Stormont to reach the issue of safeguarding legislation in the next 21 months. (Of course, coming from the political gridlock of Congress in the U.S., and as a witness to the snail's pace for protective legislation in my home state of Pennsylvania, I guess I should not be too surprised.)
Still, the good news is that the first major steps have been taken by Commissioner Keatinge and her capable staff including Catherine Hewitt and Emer Boyle, with strong support at the launch from social and health care professionals who have seen first hand the potential for subtle and not-so-subtle abuse of elder, disabled or frail adults in Northern Ireland.
And by the way, Professor Williams from Wales will be one of the presenters at the 2014 International Elder Law and Policy Conference at John Marshall Law in Chicago, speaking on older persons' access to justice as a key component of international human rights on Friday, July 11. It is a small world at times and one with a growing commitment to tackle key topics in ageing.
Wednesday, June 11, 2014
The Spring 2014 issue of the ABA magazine "Experience" has a very interesting article on "Senior Drivers," written from the perspective of a traffic judge. It is the final article in a issue devoted to the theme of "Courts and the Elderly." (I reported on elder abuse articles yesterday.) Here's how Cook County, Illinois Judge Freddrenna M. Lyle opens:
"As the prosecutor and defense argued aggravation and mitigation in the trial I was conducting, I flashed back to the signs I had missed. I remembered the little dings and scratches on my dad’s car that he never wanted to discuss. At first, it was “that other driver” in the parking lot causing the damage. He then feigned ignorance as to how and when that dent appeared in the rear quarter panel. I realized I could no longer ignore the signs and began to research how to initiate 'the conversation.' Looking at the daughter accompanying her elderly dad to my courtroom that day, I knew that she, too, was about to have this talk. In fact, after I entered the sentence in her dad’s case, she asked me to have 'the conversation' because she frankly did not know what to say."
I suspect that having a copy of this article available as a family "conversation" tool -- perhaps to show your concern as a loving family member is part of a larger public concern -- might be useful.
Many thanks to Frances Del Duca, Esq., in Carlisle Pennsyvlania for sharing a hard copy of the recent issue of Experience magazine, published by the American Bar Association. It's a jam-packed issue for those concerned with elder justice, bringing to bear multiple perspectives. I just wish the articles were fully available to the public on the ABA website!
Monday, June 2, 2014
We've written here about the high profile Mancini case of alleged assisted suicide here in Pennsylvania, that was resolved in 2014 when the trial court dismissed the charges pending against the daughter, a nurse, who was alleged to have facilitated her ill, elderly father's death by a morphine overdose.
Charges have now been filed in another Pennsylvania case that is, perhaps even more troubling, although probably less likely to attract support from "death with dignity" movements. The case does, however, raise important questions about both mental health and income supports for persons at risk, including those facing poverty.
Last week, Koustantinos "Gus" Yiambilisis, age 30, from Bucks County, PA, was charged both with assisted suicide and homicide for the death of his 59 year old mother by carbon monoxide, following his alleged use of a borrowed generator to accomplish a mutual suicide pact. News reports, including articles by Jo Ciavaglia for the Bucks County Courier Times, suggest that the son had recently lost his job and needed surgery for a brain tumor, while both mother and son are reported to have left suicide notes behind. The son survived, revived after emergency workers summoned to the house found the mother and son unconscious in the home. The mother later died in the hospital.
Tuesday, April 29, 2014
The May 2014 issue of Series B (Psychological Sciences and Social Sciences) of the Journals of Gerontology includes three articles addressing a "relatively understudied area for the psychological science of aging: older adults interacting the legal system." An editorial introducing the articles explains (minus the footnotes):
"In [this issue] the focus is on how aging affects what is known about cognition and eyewitness testimony. The first article by West suggests that, based on cognitive aging alone, age differences do not contribute to worsened eyewitness accounts. In fact, older adults may be less likely than young adults to interpolate details based on memory enhancement strategies. The second article by Henkel, however, provides evidence that when negative feedback about memory is provided and also with misleading questions, changes in eye witness accounts are more likely for both age groups. Among older adults, older ages were associated with lower accuracy and more changing of responses. The third article by Dukala and Pocyzk adds the effects of an abrupt interviewing style, misleading questions, and negative feedback as factors associated with age differences in inaccurate eyewitness descriptions of what occurred, with older adults more vulnerable to changes rooted in suggestibility. These effects were related to poorer memory rather than advanced age alone."
In his essay, Bob Knight, Ph.D. from University of Southern California, Davis School of Gerontology in Los Angeles, observes the range of results reported in the three articles demonstrates a need for "more work in this area." He concludes, "Care should be taken to make the legal system interviewers aware of potential distortions in eyewitness accounts due to memory changes that are more common in later life while also discouraging the stereotyping of all older adults as less reliable witnesses."
Monday, April 21, 2014
Here's a sampling of recently published articles from the Social Science Research Network (SSRN) falling loosely under the heading of "Elder Law" as well as other classifications:
From our Law Prof Blogging colleague Gerry Beyer, "Who Said Learning Trusts & Estates Can't Be Fun?" The abstract alone is inspiring for those of us who teach in this field:
"From even before their first day of law school, Texas Tech University School of Law students have the opportunity to appreciate the importance of the estate planning area and to understand that it can be both an enjoyable and rewarding area of law in which to practice. During orientation, which takes place the week before classes start, new students participate in full-day programs centered on a particular area of practice either of their own choosing or assigned by the administration. For the 2013 entering class, I was in charge of two full-day Estate Planning Tracks with a total of aproximately thirty-five entering students.
As their legal education continues, students have additional exposure, some mandatory and some optional, to estate planning topics. In my first year required Property course, I spend several days reviewing the basic principles of intestate succession and wills. Texas Tech then requires all students to complete a four-credit introductory course entitled Wills and Trusts as a condition of graduation during their second or third year. Students desiring a more sophisticated treatment may take courses such as Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students may also compete for a coveted position as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes.
This Article reveals my basic teaching philosophy and the general pedagogical techniques I employ to make Trusts and Estates topics both fun and relevant. I will then share with you the specific tools I use when teaching the introductory course as well as the advanced courses such as Estate Planning and Texas Estate Administration. It is my hope that you may be able to gain insight from my approach to enhance your own teaching and the experience you provide to your students."
From Northern Illinois Law Librarian Sharon Nelson, a thoughtful bibliography of articles drawing lines between mistreatment of animals and the potential for family member abuse or neglect. I have to say that I never thought about this connection before, but it does ring true for a possibly related phenomenon I observed when we were interviewing caregivers for an aging family member. If candidates were nervous around our completely benign pooches, they rarely coped well with the not-so-benign family member. Nelson sumarizes her article, titled "The Connection Between Animal Abuse and Family Violence:"
"This Selected Annotated Bibliography assembles legal and social literature that examines the link between domestic violence and animal abuse. Drawing from an ever-growing body of written works dedicated to the issue, the Bibliography presents the works that are most informative and useful to the legal community. These include case studies, current and proposed legislation, and social services guides that address the occurrence of and response to the animal cruelty-family violence correlation. In doing so, the Bibliography creates a resource that will prove helpful to a variety of legal practitioners, law makers, and professionals within the criminal justice system, and will serve as a tool to promote further understanding of the patterns of abuse that often concurrently victimize both humans and animals."
And from Canadian J.D. candidate Mathew Ponsford, an article about implications of advance care decision-making issues and legislation in Ottowa, "A Discussion of Conflict Resolution Processes Used in End-of-Life Care Disputes Between Families and Healthcare Providers in Canada." The abstract begins:
"Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications. Bill-52 (2013): An Act Respecting End-of-Life Care, introduced in Québec's National Assembly, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others. Here, Bill-52 is used as the backdrop to examining the often neglected stories of disputes arising between families and healthcare providers, and the communication strategies, negotiation and mediation processes which result amidst an often stressful, costly, and time-consuming ordeal. Numerous conflict resolution processes are discussed, but the Consent and Capacity Board, regulated through Ontario's Health Care Consent Act (HCCA), is the primary focus. The importance of empathy and cultural understanding is also analyzed, as well as the challenges of cross-cultural conflict, including sensitivities toward Canada's First Nations peoples."
Friday, April 18, 2014
My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad. A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney. The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA. The conviction was affirmed.
On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft. The broadly worded POA was executed by the mother in 2006 when everyone was healthy. The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility. The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility.
It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role. For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts.
Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009. Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals. And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.
The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring. Not easy -- not fun -- and, again, sad.
Saturday, April 12, 2014
I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons.
As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.
Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners. In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.
Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation. Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:
- In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife. In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency. (There were strong dissents to the majority's ruling,). The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters. In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid. The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
- Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
- The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders.
- In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf). Each bill passed in their respective houses. (This single sentence truncates several years of history about the negotiations, all set against the background of need for a "Vine" fix.) Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
- Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies, other legislative proposals emerged. These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers.
In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months. In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix. There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills. Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.
All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity.
At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor. Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight. By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act). Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.
There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards. The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.
Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.
Monday, March 24, 2014
Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:
- Lack of a comprehensive, national mandate for safeguard of older adults;
- Lack of innovative legal reforms at the state level;
- Invisibility of our older people;
- Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
- Absence of an international normative framework for protecting the rights of older persons.
All of these points strike a chord for those who work on behalf of victims of abuse in the United States. Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.
Thursday, March 6, 2014
In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate. Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law."
The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."
The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27, allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy. The allegations go back to 2007, with multiple continuances of the scheduled trial dates.
The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee. The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough." The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."
Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour."
The appellate opinions in the cases are fairly dry. In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01.
The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.
Friday, February 28, 2014
In the February 7 disbarment of Kansas attorney Daniel R. Beck, the disciplinary record describes a cascading series of events (including the fact that Beck continued to practice law while on administrative suspension). The heart of the case is the attorney's role in execution of "updated" estate planning documents.
During the disciplinary proceedings, Beck was found to have directed a man to forge the signature of the man's mother, a 90-year old woman in a nursing home, on key documents. Further, the attorney forged the name of his own secretary as the notary on the documents that included a family trust, a general durable power of attorney, a living will, a last will and testament, a health care power of attorney, an assignment of personal property, and an authorization to release health care information.
The attorney had drafted the original estate plan for the woman and her then-husband. In preparing and executing the "updated" documents, he was interacting solely with the son, although the record does not suggest the son was seeking or receiving any "benefit" from the changes.
In attempting to avoid major sanctions, the attorney argued that some of the updates, such as a "new" power of attorney and healthcare power of attorney, were necessary "because in his experience sometimes hospitals and financial institutions would not honor those documents if the documents are from a long time ago." At the same time he argued the updated documents made no substantive changes to the existing plan. No harm, no foul as a defense? The Kansas Supreme Court rejected the argument that the attorney's actions caused no harm to the woman in the nursing home, who died a few months after her signatures were forged:
"Respondent [Beck] admits L.H. was vulnerable but asserts that we must construe the word 'victim' to require a showing that the attorney's conduct 'actually exposed] [a] vulnerable client to real and significant harm,' and argues such as showing was not made in this case.
We need not decide whether the term 'vulnerable victim' requires that an attorney expose a client to actual harm because we conclude the record contains adequate evidence of injury, including $2,800 L.H.'s trust paid to respondent for legal work L.H. never authorized, approved, or used....
Moreover, since respondent never spoke to L.H., he can only speculate as to whether the documents he drafted could comport with L.H.'s current wishes. Put simply, an attorney injures, or at least potentially injures, a client when he or she takes legal action on the client's behalf without ever speaking with the client or ensuring that the proposed action is in accord with the client's wishes."
Hat tip to ElderLawGuy Jeff Marshall for this interesting opinion.
Thursday, February 27, 2014
As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b). The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus. Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.
The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge. There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available. So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:
- What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law.
- Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.
- Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts.
In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."
In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide. Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity."
What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide. The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die. We cannot just stick our heads in the sand and say "this case isn't likely to happen again."
The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.
Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas. As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law.
Thursday, February 13, 2014
In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice. Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter. Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest.
On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini. News reports point out that the court order was issued on the one year anniversary of her father's death. The parties had been under a gag order. Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices.
My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.
My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a "Face Book" approach to building momentum for social change and law reform.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, January 26, 2014
According to BBC, HSBC has recently started asking at least some of its individual banking customers in England to explain "large" cash withdrawals, especially where the requested cash appears atypical of spending patterns. Financial exploitation is part of the concern. As reported by BBC, HSBC representatives explained:
"HSBC has said that following customer feedback, it was changing its policy: 'We ask our customers about the purpose of large cash withdrawals when they are unusual and out of keeping with the normal running of their account. Since last November, in some instances we may have also asked these customers to show us evidence of what the cash is required for.'
'The reason being we have an obligation to protect our customers, and to minimise the opportunity for financial crime. However, following feedback, we are immediately updating guidance to our customer facing staff to reiterate that it is not mandatory for customers to provide documentary evidence for large cash withdrawals, and on its own, failure to show evidence is not a reason to refuse a withdrawal. We are writing to apologise to any customer who has been given incorrect information and inconvenienced.'"
Not surprisingly, the new policy has already generated questions and concerns:
"Douglas Carswell, the Conservative MP for Clacton, is alarmed by the new HSBC policy: 'All these regulations which have been imposed on banks allow enormous interpretation. It basically infantilises the customer. In a sense your money becomes pocket money and the bank becomes your parent.'
But Eric Leenders, head of retail at the British Bankers Association, said banks were sensible to ask questions of their customers: 'I can understand it's frustrating for customers. But if you are making the occasional large cash withdrawal, the bank wants to make sure it's the right way to make the payment.'"
Monday, January 13, 2014
A few years ago, one of the more perplexing cases handled by Penn State's Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s.
The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home. She was able to talk and communicate; arguably she did not seem impaired. She was told the product would save on taxes -- a pitch alluring to the frugal woman -- except for the fact that she really didn't need to save on taxes.
If one lives long enough or has looming care needs even at an earlier age, an individual's post-death estate planning goals can conflict with pre-death care needs. In the clinic client's case, the woman's annual income was modest, and her total estate was not large enough to trigger other major taxes. The assets used to fund the annuity were virtually her entire savings. Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity "early."
How often does this -- or worse -- happen?
In "Still No Free Lunch: Recent Regulatory Initiatives to Protect Seniors From Fraud in the Sale of Investment Products," 41 Securities Regulation Law Journal 397 (Winter 2013) (paywall protected; available on Westlaw as 41 No 4 SECRLJ Art 2), attorneys Ivan B. Knauer and Michele C. Zarychta address recent efforts to prevent or address fraudulent practices by an array of regulatory bodies. The 2013 piece updates their 2008 article (available at 36 No 4 SECRLJ Art 3). They outline several types of fraud and various financial products often marketed specifically to elders. For example, they observe:
"One of the most pressing concerns of the regulatory entities is the improper -- or at least confusing-- use of 'senior' designations by professionals, implying that a professional has expertise or training in senior-specific issues. FINRA [the Financial Industry Regulatory Authority] 'Rule of Conduct 2210 prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations or referencing legitimate degrees or designations in a misleading manner.' Misleading use of such designations may also violate federal securities laws or state laws."
The authors, who are experienced in representation of investment and financial service companies, recognize that business lawyers can help clients recognize the need to "take measures to ensure that their own policies and procedures protect seniors." "Still No Free Lunch" is a reminder that attorneys who are advisers to companies can and should be a larger part of the solution, rather than be viewed as part of the problem.
In reading the article, which emphasizes regulators' programs to "educate" the public, I am struck by the likelihood that a key tipping point occurs when a senior's susceptibility to a manipulative pitch is outweighed by his or her weakened ability to recognize risk, regardless of any fraud-prevention education. That was true, for example, with our clinic's client. Her life-time frugal nature was still intact; however, her judgment about whether she needed to "save" money on taxes was diminished. More education was not the solution for her, as she had probably lost the ability to appreciate its application. Indeed, a common marketing practice to seniors -- free lunches or dinners disguised as "educational seminars" -- trades upon that very fact, thus giving rise to the "no free lunch" theme in both articles by authors Knauer and Zarychta.
The authors detail stepped up enforcement efforts, including recent measures by the Consumer Financial Protection Bureau, established in 2010.
Hat tip to Penn State Dickinson Law Professor Lance Cole, who shared this interesting article.
January 13, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)