Tuesday, August 19, 2014
This summer I had the pleasure of visiting friends on the West Coast, including a stop in Carlsbad, California to learn more about actuarial and accounting standards for continuing care communities (CCRCs). As I walked into "Carlsbad by the Sea" on the corner of Grand Avenue and the old Pacific Coast Highway, I thought things looked a bit familiar. The mission style, the healing waters from a "well" across the street, a Victorian style building a few steps away that I seemed to recall as the "chicken place" (and honestly, that's a compliment!) -- they all seemed familiar. I telephoned my mother in Phoenix and asked, "by any chance, when I was a kid, did we ever stay at a hotel at this location?"
My mother laughed and said that the family didn't -- but she and my father visited the historic Carlsbad Hotel on this spot in 1952 on their honeymoon! She told me they had the "best" roast beef in the dining room. I had seen pictures of my parents in photo albums, arm in arm in the hotel gardens and sitting on the steep steps to the beach. (Later, as a family, we also toured Carlsbad on a family summer vacation -- hence my memories of the "chicken place," a restaurant popular with families because of a huge plaster chicken on the corner and live hens and roosters roaming the grounds. At that age I didn't make the connection to what we were probably eating....).
I learned that the Carlsbad Hotel was first opened in the late 1880s. In 1929, it was rebuilt in a classic California mission style (shown above)and the resort was known for its proximity to the beach -- and its hot and cold mineral baths. In the 1930s, the resort was popular with the Barrymores and Greta Garbo. In the 1990s it closed -- and was eventually rebuilt and reopened as Carlsbad by the Sea Retirement Community. My mother enjoyed my latest photos, showing how the garden and building traditions continue in the new setting.
So, from luxury hotel to a remarkably nice retirement community by the sea, with independent living, assisted living and skilled nursing available on the site. And, I'm happy to report there is still very fine dining available. The "hospitality" industry has given way to the "long-term care" industry. All of this is another sign of our aging times, right?
P.S. For more on the "chicken place," once called the Twin Inns, here's a link, including a surprising Pennsylvania-to-California connection.
Monday, August 18, 2014
Ever try to cross a busy street within the time of the walk light at a normal pace? Ever cross with someone using a walker or a manual wheelchair? Is the light long enough? If the light seems too short, perhaps it's not timed for the users. I ran into an article recently that studied this. Published in 2012 in Age & Ageing, Most older pedestrians are unable to cross the road in time: a cross-sectional study concludes that
most older adults either cannot walk 8 feet safely or cannot walk fast enough to use a pedestrian crossing in the UK. The health impacts on older adults include limited independence and reduced opportunities for physical activity and social interaction. An assumed normal walking speed for pedestrian crossings of 1.2 m/s is inappropriate for older adults and revision of these timings should be considered.
Although this is a UK study, it's instructive if we are to move more toward walkable communities and away from communities designed around cars.
A number of years ago I audited a very interesting course in a gerontology program with the title "Housing the Elderly." It occurred to me at the time, however, that the title was a bit unfortunate, as it implied "warehousing" old folks rather than truly accomodating potential needs. Fortunately, over time I have sensed a growing appreciation of the significance of the distinction.
I was reminded of this while reading "For an Aging Parent, an 'In-Law Suite' Can Provide a Home within a Home" in the Washington Post. The article describes the experience of one family's decision to add a bedroom suite on the first level of their home to meet the needs of a aging parent. According to housing experts quoted in the article "demand for in-law suites is growing."
The article contrasts "true in-law suites" -- defined as a "living space integrated into a house to accomodate an older or disabled reative" -- with "accessory dwelling units" or ADUs. ADUs "function as separate dwelling units and often are intenteded for rental." As I recall, a few years ago, prefabricated versions of ADUs were popular in the media and dubbed "granny pods." Does anyone know whether granny pods ever caught on? The article suggests that building codes and zoning codes may present barriers to certain types of supplemental construction. I suspect that it would also be easy to trigger homeowner association restrictions.
The article suggests practical considerations:
- The suite should be comfortable and private to foster a feeling of independence....
At the same time, it should be close and connected to the family living area.
Place the suite on the main floor so that it has access to shared living spaces without the barrier of stairs.
Incorporate wide hallways and doorways (at least 36 inches) in the suite and adjoining living spaces to accommodate wheelchairs, walkers and people walking side by side.
- Integrate features that are attractive but safe and accessible, such as smooth flooring, lever handles for doors and faucets, non-skid bathroom flooring, a large curbless shower, a shower bench, a hand-held shower head, a chair-height toilet and sturdy, good-looking grab bars.
Many of these are core principles for "Universal Design," a housing construction movement that can be traced back to the early 1960s.
Building or selecting a new house? Consideration of universal design features may make it possible to stay at home much longer as you age. AARP offers additional suggestions in a recent interview with Universal Design Specialist Richard Duncan. And more info is available at UniversalDesign.com including citations to local, state or federal laws that may mandate certain elements of universal design for new construction.
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...
Friday, August 8, 2014
President Obama traveled to Fort Belvoir, Virginia to sign a reform bill giving the Department of Veterans Affairs the necessary resources to improve access and quality of care for the men and women who have served our country in uniform. In remarks before the bill signing, President Obama addressed the misconduct that has taken place at some VA facilities across the country —
We’ve already taken the first steps to change the way the VA does business. We’ve held people accountable for misconduct. Some have already been relieved of their duties, and investigations are ongoing. We’ve reached out to more than 215,000 veterans so far to make sure that we’re getting them off wait lists and into clinics both inside and outside the VA system.
We’re moving ahead with urgent reforms, including stronger management and leadership and oversight. And we’re instituting a critical culture of accountability -- rebuilding our leadership team, starting at the top with Secretary McDonald. And one of his first acts is that he’s directed all VA health care facilities to hold town halls to hear directly from the veterans that they serve to make sure that we’re hearing honest assessments about what’s going on.
The VA reform bill -- officially the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014 -- passed Congress with overwhelming bipartisan support, and will expand survivor benefits and educational opportunities and improve care for victims of sexual assault and veterans struggling with traumatic brain injuries. But the main focus of the new law is to ensure that veterans have access to the care they’ve earned.
Thursday, August 7, 2014
It was just about a year ago that Rebecca Morgan and I joined Kim Dayton on the Elder Law Prof Blog. Thank you, Kim, for this invitation! I'm not sure how many postings each of us has written over the last year -- but I suspect we've each averaged close to five items per week.
I know I've learned a lot from this "joint and several" effort, both in reading my colleagues' thoughtful items and in thinking more deeply as I try to craft my own. I know the Blog has opened new and interesting doors for me, including conversations with law faculty across the country -- and, indeed the world -- as well as many late night consulations with hard-working attorneys who are on the frontlines of topics we write about in the Blog. Our pieces sometimes have "second" lives, as when the editor for the Illinois Bar Association's Trust & Estate section asked for an expanded discussion of liability for family members under nursing home contracts, based on a blog post. Older adults sometimes email me to correct, question or clarify some point I've tried to make. Readers call or write to suggest new directions, new cases, and new articles for us to pursue. Thank you all!
Keep your cards and letters coming, folks. Let us know what we should be covering, Tell us what you like (or don't) about what we have included on the Elder Law Prof Blog to date. Happy Anniversary to our readers!
Tuesday, August 5, 2014
The Law and Ethics of Dementia, co-edited by Israel Doron, Charles Foster and Jonathan Herring, recently released in hardback by Hart Publishing and available for e-readers in September, is definitely on my "must read" list. Followers of this Blog will certainly recognize Issi Doron, from the University of Haifa, who has long exercised an international, comparative perspective on issues in ageing. Professor Foster is a practicing barrister and a fellow at Green Templeton College, University of Oxford, which is also the working home of prolific writer and Law Professor Herring.
The book is organized into five parts, Medical Fundamentals, Ethical Perspectives, Legal Perspectives, Social Aspects, and Patient and Carer Perspectives. As part of the first section, physicians and researchers Amos Korczyn and Veronika Vakhapova co-author "Can Dementia be Prevented?" a question we all hope will be answered in the affirmative. Not surprisingly, given the title of the book, the section on ethical perspectives promises to be especially fascinating, offering multiple views on ethical components of decision making and care. To suggest the scope, Andrew McGee's chapter is on "Best Interest Determinations and Substituted Judgement," while Leah Rand and Mark Sheehan tackle the challenge of "Resource Allocation Issues in Dementia."
In the Social Aspects section, I notice that Syracuse Law Professor Nina Kohn has a chapter on "Voting and Political Participation," while Chinese (and University of Pennsylvania) health care scholar Ruijia Chen and colleagues address "Physical, Financial and Other Abuse."
With more than forty individual chapters and dozens of international writers, this book promises to be a key guide for the future.
Monday, August 4, 2014
There is a fair amount of debate about whether and when long-term insurance is the best way to plan for the possibility of disability requiring future care. But, here is a first, at least in my experience: a claim by a major long-term care insurer that a policyholder engaged in fraud in seeking benefits tied to proof of his alleged need for assistance with activities of daily living. Undercover camera work was involved.
According to the federal magistrate called upon to rule on the defendant/insured's motion to dismiss, here are the key facts alleged (minus the citations to the record):
"At some point not specified in the Complaint, Transamerica began investigating whether [Defendant] was able to perform his Activities of Daily Living without assistance. To this end, Transamerica retained an investigator to conduct video surveillance of Jurin between January 5, 2012, and February 5, 2012. Transamerica alleges that this 'investigator recorded [the defendnt] in engaging in activities inconsistent with his asserted limitations.' An investigator conducted additional surveillance in 2013 from September 27 through 29, on October 5, and from October 7 through 12. Transamerica alleges that on these dates the investigator recorded [the defendent] performing various activities including walking uphill, walking while holding bags, entering and exiting a car without assistance, shopping, and doing yard work.
On October 9, 2013, Dr. Mohinder Nijjar, a board-certified orthopedic surgeon performed an Independent Medical Exam (“IME”) of [the defendent] and, based on [the defendent's] self-reporting and self-limiting behavior, opined that [he] was unable to perform Activities of Daily Living without assistance. Transamerica provided Dr. Nijjar with the investigator's video surveillance recordings and asked him whether the recordings altered the conclusions of his IME report. In December 2013, Dr. Nijjar issued a supplemental report in which he stated that, based on his observations in the videos, [the defendent] could engage in Activities of Daily Living without assistance, including washing, dressing, and feeding himself and walking. Dr. Nijjar further opined that Jurin was able to perform instrumental activities of daily living such as preparing meals, housekeeping, and laundry."
Thursday, July 31, 2014
At the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago on July 10 and 11, many weeks of hard work culminated in adoption of a "Chicago Declaration on the Rights of Older Person." The 11th draft -- of what is to be a working document for the future -- will be presented at the Fifth Working Session of the United Nations Open-Ended Working Group on Ageing to be held in New York City this week.
In addition, the Chicago Declaration was submitted by United States Representative Janice Schakowsky (Illinois) to the Congressional Record on July 25.
Congratulations to all who worked on this, with the leadership of many, including Associate Dean Ralph Rubner and Amy Taylor, Head Research Coordinator at John Marshall Law School. More work for everyone is ahead on this exciting task of seeking wider recognition of the human rights of older persons.
Speakers at the "Side Event" for the Chicago Declaration, to be held on August 1 at the U.N., include William Pope, Commissioner of the American Bar Association Commission on Law and Aging, and Ebbe Johansen, Vice President, AGE Platform Europe from Brussels.
Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, July 27, 2014
The Amsterdam, also known as Amsterdam House at Harborside, has been marketed as the "first and only" life care community in Nassau County. It now also appears to be the first CCRC in that county -- and perhaps in the state of New York -- to seek the protection of the bankruptcy court. The company filed under Chapter 11 for "Reorganization" on July 23, 2014.
As reported in Newsday on July 23:
"An upscale retirement community in Port Washington has filed for bankruptcy protection after failing to get all of its bondholders to support a debt restructuring. The Amsterdam at Harborside sought protection in federal court from its creditors under Chapter 11 of the U.S. Bankruptcy Code. Executives at the not-for-profit said Wednesday that it would not close and there are no plans to fire any of the 173 employees. In a court filing in Central Islip on Tuesday, the continuing-care complex said its liabilities and assets were both in the range of more than $100 million to $500 million."
According to news reports, The Amsterdam was opened in 2010, near the peak of the recession, a tough time for many CCRCs. It is a "refundable entrance" fee model, with entrance fees ranging from $500,000 to $1.6 million, with a reported 85% occupancy status. Newsday also reports that "under the proposed restructuring plan, [company spokespersons said] the retirement community would honor the contracts of existing residents, continue to refund residents' money when they no longer live there, and maintain the current fee structure."
Update: Senior Housing News describes the filing as a "pre-negotiated chapter 11 bankruptcy petition to restructure an estimated $220 million in debt."
Tuesday, July 22, 2014
Mexico and countries in the Caribbean, Central and South America have been working very hard on the question of whether laws are needed to recognize and promote the human rights of older persons. This commitment was demonstrated during the 2014 International Elder Law and Policy Conference in Chicago, by Rosa Bella Caceres Mongelos from Paraguay, as one of the speakers on the panel focused on "Dignity, Equality and Anti-Ageism Rights of Older Persons."
Professor Caceres Mongelos is the current president of the Central Association of Retired Public Servants and Teachers in Paraguay, and has experience as a master teacher, educational administrator, and vocational counselor. She has also taught classes at the university level on leadership. When I asked whether her organization is comparable to AARP in the U.S., which was started by a retired teacher, she laughed and said "maybe some day." I think she would not mind me saying that she's tiny but powerful -- and certainly she is an articulate spokesperson for the issues her country, with a total popularion of 6.8 million, is facing.
Professor Caceras Mongelos has served as a spokesperson for her civil society organization during regional meetings for Latin America and the Caribbean in 2012 and 2013 that led to endorsment of a formal international convention on the rights of older persons.
The participation of Paraguay in international discussions of aging is forward-thinking, as it is actually a comparatively young country in terms of its overall population. Persons aged 60 and over comprise approximately 8% of the population. Recent news reports indicate that more than 66% of its population is less than 30 years old. At the same time, with their citizens already experiencing relatively long-life spans, especially on a comparative basis (average life span is now 75 according to some reports), the country will begin to see the impact of aging as a nation starting in 2038.
The organization headed by Caceres Mongelos has adopted advocacy goals for its members, including health related goals, such as securing free health care (including mobile clinics) for retirees for critical matters such as vision and dental care, and for treatment of cancer and chronic diabetes, all issues recognized as important for the self-esteem of older persons. Her Central Association has a project called "Hogares de Jubliados" or "Homes for the Elderly," with a goal of providing space for as many as 200 persons deemed vulnerable and unprotected. Her organization seeks to "monitor and insure safekeeping of social security funds under control of the treasury" during the current fiscal crisis. A better system of public transportation is another key goal.
She described her Central Association's recent Yellow Ribbon Campaign to re-enforce recognition of the rights of civil services and retirees to be free from pay discrimination under the Constitution of Paraguay. She described the yellow ribbons as symbols for the "struggle to claim solidarity, love, better living and the light of hope for a bearable and dignified old age." Despite the small proportion of Paraguayans currently deemed older -- in their "third age" -- she said "fragility" often characterizes their life conditions, with more than a quarter of the population of older adults illiterate and with only 19% currently receiving any form of income from pension or retirement benefits. In addition, her association stresses that real attention must be paid to the needs of older persons in indigenous communities and Afro-descendants.
In closing, Professor Caceres Mongelos called for an end to procrastination on international recognition of the rights of older persons. She said, "Declaring and implementing the regulations calling for dignity, equality and non-discrimination ... for older persons needs to be achieved as quickly as possible [toward] the goal of improving quality of life and respecting the human rights of older persons."
Friday, July 18, 2014
The story of Kitty Lee, age 75, and her beloved border collie Zoe, age 18, captures so much that can be poignant about aging. From the Albuquerque Journal, in a story by Joline Gutierrez Krueger:
"For months, Lee knew it was time to say goodbye to Zoe, her constant companion since 1999. The tumor had gotten so big, and Zoe had gotten so weak. Her gentle brown eyes were clouding over. She couldn’t hear. It wasn’t fair to force her to live this way just for Lee’s sake.
“She deserves better than this,” said Lee, 75. “She deserves to die with dignity.”
But dignity is hard to pay for.... Today, Lee lives on a monthly $800 Social Security check, just enough to pay for groceries, bills and rent for the broken-down RV parked in a West Central [Albuquerque, New Mexico] trailer court."
The costs and procedures for euthanasia for the suffering collie were more than Lee could handle alone. Plus, she did not want to simply abandon the decision to others; she wanted to be part of a safe and humane process for Zoe. The Albuquerque Journal writer's first news story resulted in donations and offers of assistance. Eventually, Lee's collie "died peacefully and with dignity in her woman's arms."
I suspect if you have read this far, you too might have a tear in your eye. The full story is here.
Monday, July 14, 2014
I suspect that even in this overcrowded world of news and information, many of our readers have their favorite correspondents, whose emails always provide value added. One of my favorites along this line is Dionysios C. Pappas, Esq., better known to Pennsylvania elder law practitioners and VA specialists as Dennis.
Today Dennis shared a "very disturbing" on-line account from the Philadelphia Inquirer about "disarray" in the Veterans' Administration center in Philadelphia, which is a regional processing center for claims. Dennis points to the latest news of a laundry list of problems, including:
- “...mail bins brimming with claims dating to 2011...”
- “...Two whistle-blowers..., described the process the same: "cooking the books." "They're hiding the real numbers from the people and saying, 'We're catching up to the backlog,'..."But they're not. They're just hiding it."...”
- “...Staff "cherry picking" easy claims and processing them out of order to inflate performance...”
- “...Staff not addressing more than 32,000 electronic inquiries from veterans regarding the status of their claims...”
- “...Staff hiding mail...”
- “...Staff shredding military and returned mail that couldn't be delivered...”
Saturday, July 12, 2014
University of Missouri Law Professor David English, who is the current Chair of the ABA Commission on Law and Aging, provides a succinct outline of key legal challenges connected to aging in the U.S., an outline he also uses to organize his law school's Elder Law course. The essay appears in the May/June issue of Bifocal, capturing a lecture Professor English gave to the Institute of Gerontology at the University of Tokyo, Japan and the Beiing Administrative College in China.
In addition to the impact of demography, Professor English points to the following "challenges:"
- Employer Pensions: "In many countries, pensions provided by employers are closely coordinated with government Social Security payments. In the US, the two systems are independent...."
- Social Security: "It is predicted that the [Social Security] Trust Fund will run out of money in 2033. The program will thereupon have to cut benefits by about 25% in order to match payments to current Social Security taxes. To avoid such a sudden cut, Congress should act well in advance of the 2033 deadline to either increase Social Security taxes or modify benefits. Each year that the US Congress waits to act, the necessary adjustments will become more severe...."
- Health Care Finances: "...Medicare already has many gaps in coverage, requiring that elderly persons purchase private supplemental policies. Medicaid for the poor isn't necessarily in better financial shape, and because of low fees paid by Medicaid, many doctors refuse to accept Medicaid patients. Nor are Medicaid benefits coordinated well with Medicare...."
- Consumer Fraud: "The elderly are frequent targets of fraud. Federal and state regulation is incomplete and inconsistent.... Examples include: mortgage fraud; fraudulent sales of private health insurance; theft by court-appointed guardians; theft by agents under powers of attorneys; funeral fraud; telemarketing, home repair, and sweepstakes fraud."
- Guardianships: "Over the past 30 years, there have been major reforms in US guardianship laws. The court is encouraged to explore alternatives to guardianship before making an appointment. In making an appointment, the court is encouraged to give the guardian only such powers as are necessary, a goal which is achieved by appointing what is known as a limited guardian. But there is a big gap between the statute and the actual practice."
- Planning for Incapacity: "Most people will lack adequate mental capacity to make their own decisions sometime during their lives. Yet, most adults fail to plan in advance. There is a need for better education on the options and encouragement for people to plan."
- Health Care Decisions: "[S]igning a health care power of attorney or health care directive may not be effective to assure that health care decisions are made in accordance with the individual's wishes.... POLST [Physician Orders of Life Sustaining Treatment] shows great promise of creating a pathway whereby a patient's wishes will more likely be honored."
- Elder Abuse: "Similar to guardianship, good data on the prevalence of elder abuse does not exist but the increases in the number of elderly suggest a corresponding increase in the incidence of abuse."
Professor English was also one of the participants at the 2014 Elder Law and Policy Conference recently held at John Marshall Law School in Chicago, serving as a moderator, with JML's Barry Kozak, for the panel on "social security, pensions, and economic rights of older persons."
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.
Monday, July 7, 2014
Sunday, July 6, 2014
I'm back from a fun and productive time in Northern Ireland, and feeling invigorated. In addition to enjoying beautiful weather, great craic, and time spent with friends exploring the north Antrim coast via foot, boat and a friend's snazzy red convertible, I participated in working meetings in Belfast conducted by Claire Keatinge, the Commissioner of Older People for Northern Ireland (COPNI). The topics were prospective laws and guidance regarding safeguarding and social care policies for older adults, connected to commissioned research by two academic teams headed by members of Queens University Belfast.
I've been thinking about one particular theme that emerged for me from the working sessions: does a government's commitment to assess need for services obligate the government to meet those needs? In a perfect world, of course that would be the goal, but this is hardly a perfect world. Claire Keatinge (pictured in the center, with members of the social care research and advisory teams) raised the point that too often governments may be driven by "what services are available" as the definition of need. In other words, there is a tendency to recognize an individual's need only if the government actually has a program or package of services available. Thus, for example, even if the individual needs one-on-one monitoring and assistance to avoid serious risk of injury from falling, the tendency of social care programs would be to indicate 4 hours per day of "need" if that was the limit of government funding. Such "backwards" assessment leaves the person vulnerable, not just from the limitations on public funding, but from the inaccurate record of need.
We spent time talking about whether legislation or policy guidance should address both assessment of need and programs of service. The COPNI discussion helped me to realize that accurate assessment and recording of all need is critical to coordination of family, volunteers, nonprofit or church-based assistance, and government funding to meet the true needs of disabled or frail individuals. However, assessment of need still carries implications for government funding.
The implications of assessment are addressed in an important recent decision of the European Court of Human Rights in McDonald v. United Kingdom (Application No. 4241/12). In the case, a British woman born in 1943 sustained a disabling stroke in 1999, followed by a badly broken hip from a later fall. Ms. McDonald, who was not incontinent, applied for assistance at night with toileting; eventually she was assessed as being in "substantial need" of nighttime personal assistance and provided a funding package that permitted her to have nighttime assistance. However, later the government office reduced the funding, appearing to conclude the cost was excessive and "incontinence pads" for nighttime use was sufficient, reducing the number of hours of service.
Ms. McDonald challenged the reduction of services under Article 8 of the European Convention on Human Rights, arguing the decision violated her right to respect for her private life, and that the local authority was "unreasonably and unlawfully failing to meet her assessed and eligible needs." Several months later she was reassessed by the local authority, which then determined that Ms. McDonald's needs for "safety" at night could be adequately met by the use of incontinence pads and sheets. Ms. McDonald framed an emotionally persuasive case that the ability to toilet in a dignified manner was a core human right.
Ms. McDonald's appeal was addressed by high courts in England, before reaching the European Court of Human Rights, which issued a decision in May 2014. Ultimately the court concluded that during the period of time between the initial assessment of "substantial" need and the later reassessment, a period of about a year during which Ms. McDonald was provided with limited nighttime assistance, was a violation of Article 8. She was therefore deemed entitled to a relatively nominal sum of damages (explained in a detailed portion of the opinion). However, once the local authority's "reassessment of need" occurred, the Court determined it was without the power to find a human rights violation under Article 8. This outcome strikes me as demonstrating the potential for governments to be driven by finances to avoid making independent, candid assessments of need. Ms. McDonald's physical conditions and nighttime needs had not changed; only the "assessed needs" had changed.
For more on the implications of the McDonald ruling, viewed by many as a "win" because it recognized a personal right protected under Article 8, see English Barrister Steve Broach's thoughtful commentary, "Context is Everything: Why McDonald v. UK is a Stepping Stone on the Road to a Dignified Future for Disabled People."
Friday, June 20, 2014
I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues.
Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss practical concerns about elder abuse at the local level. Bob and I conducted two sessions on Powers of Attorney.
This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force. Judge Murphy, right, is also a part of this effort. A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse. Guided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.
Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI). Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast. The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors. Last winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals. These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals. I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year.
Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks. I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me.
June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Sunday, June 1, 2014
As Becky Morgan and I reported earlier, the Law & Society Annual Meeting held in Minneapolis from May 29 through June 1, attracted terrifically interesting speakers, both from within and outside the United States. During the Critical Research Network sessions (CRN) on Aging, Law & Society, I was particularly struck by listening to a trio of speakers from Israel, including Israel (Issi) Doron from the University of Haifa, Michael (Mickey) Schindler from Bar-Ilan University, and Benny Spanier, from Haifa University.
Issi provided a historical perspective on aging as an international human rights issue, tracking the development of action plans under the auspices of the United Nations from 1982 in Vienna to 2002 in Madrid. The 2002 outcome document, the Madrid International Plan of Action on Ageing (MIPAA), expresses the commitment of 160 participating governments, including the United States, to integrate rights and needs of older persons into national, as well as international, economic and social development policies. However, as Issi pointed out, this is a "soft" document, non-binding in nature.
Thus, the next important step is a Convention or Treaty on aging human rights, a subject of on-going discussions in international circles. Issi saw a hopeful sign in May 2014 appointment of a new Independent Expert on Human Rights of Older Persons, Rosa Kornfeld-Matte, by the U.N. Human Rights Council. Kornfeld-Matte served as the National Director of the Chilean National Service of Ageing and has a long career as an academic, working for more than 20 years at the Pontificia Unversidad Catolica de Chile, where she founded a program on older people. The role for Ms. Kornfeld-Matte, who has a 3 year appointment, is that of fact-finder, to provide an independent assessment of the critical issues for aging human rights as the basis for international law.
Micky's presentation focused on the effect of Israel's use -- or relative nonuse -- of legislation adopted in 1966, the "Safety of Protected Persons Law." He pointed to the potential role of social workers in safeguarding the rights of older adults, and suggesting that the flexibility available to the court to fashion court-enforced solutions to care and safety issues might be a better option than what is available under the more-often used guardianship law.
Benny examined some 226 decisions involving claims by older persons before the European Court of Human Rights, drawn from 2000 to 2010, concluding that although the European Convention on Human Rights does not specifically recognize older adults as having protected right, the cases examined demonstrate that individuals making age-based claims for protection are seeking -- and in some instances finding -- relief before this court. Benny's analysis of these cases, in a paper co-authored with Issi and Faina Milman-Sivan, also from the University of Haifa, was published in late 2013 in the Journal of Cross Cultural Gerontology.
Following the first day of presentations and workshops, several of the speakers met for dinner at a local Minneapolis restaurant (Spoonriver, overlooking the Mississippi River -- great spot!), and a number of us were discussing a growing problem for international research. Many of the key journals and periodical publications for aging research are "owned" by publishers who prohibit authors from placing final versions of their papers on open-access research platforms such as SSRN. The prices charged for individual researchers' access to electronic copies of an article are often prohibitive for academic researchers, who often need and wish to cite to multiple sources. We discussed options, such as whether authors should seek to negotiate for unrestricted public access after an initial period of fee-paid access. Others' thoughts on this issue?