Saturday, September 6, 2014
I claim New Mexico as one of my several "homelands." Thus, a story about how chile farmers are confronting the aging of their work forces caught my eye. This time of year is when the air in New Mexico grows more pungent with the smell of fresh green and red chiles roasting in road-side stands. From the Albuquerque Journal:
"New Mexico’s chile fields are graying. The generation of farmworkers on which producers have long depended are aging out of the workforce. Farmers say local youth are loathe to take their place picking delicate green chile under a scorching sun, while tough border security and a lack of immigration reform has kept Mexican workers away.
Growers across the nation from Washington to South Carolina have long complained of a labor shortage, and they often blame their distance from the border with Mexico, which for decades supplied this country’s agriculture workforce. But New Mexico’s Hatch Valley – an hour’s drive from the Mexican border – is in the same boat, even though a skilled picker can make considerably more than the guaranteed state minimum wage of $7.50....
Juan Carlos Soto hunches over knee-high chile plants at the Adams farm in the Hatch Valley, where green fields of chile, corn and pinto beans stretch to the base of the brown Uvas mountains. He came to the U.S. illegally as a farmworker in 1984, he said, and earned citizenship through the 1986 Immigration Reform and Control Act, which granted amnesty to millions of undocumented foreign workers but did little to change the framework for legal immigration of workers going forward.
Soto carefully snaps long green chiles off their stems with eye-catching velocity – a skill that only experienced chile pickers have, farmers say. 'This is where I have worked my whole life,' he said, explaining that he taught his daughter to work the chile fields but adding proudly that she became a nurse. 'The youngsters want to work in the shade.'"
For more of the story, read "Chile Farmers Face an Aging Workforce." And before you dismiss this story as just about green chiles, remember that in many regions of our country, long-term care industries also depend on immigrant work forces -- another reason for getting serious about creating fair, safe avenues for legal immigration.
Wednesday, September 3, 2014
We get calls of all types, on our cell phones and for those of us who still have them, our land lines. Imagine a phone call offering you counseling on end of life options. Sound far-fetched? Not so much for some. Kaiser Health News (KHN) ran a story in late August, Operator? Business, Insurer Take On End-of-Life Issues By Phone. The article describes a company "Vital Decisions... [where] [a]fter sending a letter (people rarely respond) counselors essentially cold-call to offer what they describe as “nondirected” end-of-life counseling" to those who are quite ill. The company uses social workers to make the calls, which are short (about 15 minutes). Here's what the program is designed to achieve:
to build a relationship over the phone, [with the patient] so [the patient] might be comfortable discussing his situation and his goals. Then he’ll be empowered to communicate those things with others, including his family and his doctors. He could also choose to allow the counselor to talk to his doctors or family directly. It’s paid for by insurers and federal privacy rules permit this for business purposes.
According to Vital Decision's CEO, the goal is to facilitate discussions about end of life care and empower the patient's decision-making. "The goal is for patients to receive care in those final months that aligns with what the patient wants, even if that's the most aggressive treatment available." Some are skeptical of this phone approach because of the lack of in-person interaction and the challenges to remain neutral, which is why one expert calls for "full transparency from insurers and the company to guard against bias in the sessions."
Monday, September 1, 2014
The NY Times ran an article a few days ago about retirees who are spending the rest of their lives (or a substantial part thereof) traveling...abroad. The August 29, 2014 article, Increasingly, Retirees Dump Their Possessions and Hit the Road focuses on the rising number of individuals who choose to travel when they retire. The article cites to statistics from the Commerce Department that "[b]etween 1993 and 2012, the percentage of all retirees traveling abroad rose to 13 percent from 9.7 percent...." As well, over a quarter of a million Social Security recipients receive their benefits at an oversees address, close to "48 percent more than 10 years earlier...." The article discusses the value of post-retirement travel, from checking items off one's bucket-list, to quoting experts on how today's retirees are changing the notion of a "typical" retirement. One expert describes the travel value this way: "an extended postretirement trip can assuage a sense of loss from ending a career." Of course, many chose domestic travel over international, but the opportunities are there-whether to see the world, or to give back to a global community.
The article highlights a trend of sorts. Of course, not everyone may choose this path for retirement. But it does make for an interesting question when deciding where to spend the holidays when mom is now living in another country ....
Thanks to Stetson Law student Erica Munz for bringing the article to my attention.
Thursday, August 28, 2014
Pennsylvania has a long and colorful history with charitable trusts and bequests coming from wealthy entrepreneurs, including the histories of The Barnes Foundation and The Hershey Trust, both of which have generated "classic" cases studied in law school courses.
This week, a Philadelphia Court of Common Pleas (the trial level court) issued the latest decision on the Stephen Girard Trust from 1831, the "painstaking details" of which created Girard College. For much of its existence Girard College functioned as a multi-year, residential boarding school program for orphan boys. Past court cases have resulted in rulings that permitted significant "deviations" from the terms of the wealthy philanthropist's will, including admission of minority students, female students, and expansion of the definition of "orphans" to admit students who still had one living parent.
At issue now is whether the trustees (actually a "Board of City Trusts" created by statute in 1869 to administer trusts left to Philadelphia for charitable purposes) will be permitted to further "deviate" from the settlor's original vision for the school, in order to create a more "financially sustainable" model.
Despite the long history of changes, leading the court to describe Stephen Girard's will as "the most litigated will in history," the court treated the latest proposals -- elimination of the residential program and "high school" classes -- as triggering a stricter standard of review, under the doctrine of cy pres:
"This Court does not agree that the requested modifications relate to administrative provisions of Stephen Girard's Will. The design of Girard College as a boarding school, intended to provide a residence, as well as an education to its students is reflected in the very terms of the Will....
Rather than an administrative decision, this Board [of City Trusts, acting as trustees] is seeking a cy pres remedy. This doctrine, unlike administrative deviation, is applied where a change is sought to the purpose of the trust.... Divorcing the residential aspect of Girard College and the high school program from a Girard education is inconsistent with the very terms of the Will and the directions of the testator.
The cy pres doctrine, now codified,... permits this Court to approve a change in the terms of a Trust to direct it to purposes that are as close as reasonably possible to the settlor's original intent and that are possible to fulfill. The cy pres doctrine cannot be invoked until it is clearly established that the direction of the donor cannot be carried into effect."
After reviewing the evidence about the operating finances of Girard College, the court takes the time to commend the trustees "for beginning to confront the myriad of financial, educational and institutional challenges currently facing Girard College." Nonetheless, the court concludes that based on the financial information it "cannot permit the Board to modify the Will of Stephen Girard as requested.... This Court cannot treat those proposed changes as administrative deviations and will not apply the cy pres doctrine absent a showing that achieving those objectives is impracticable."
In addition to the discussion that clearly distinguishes the law of "deviation" from "cy pres," the outcome is also notable because:
- The court had earlier rejected "standing" for a Girard College alumni group that sought to oppose the proposed changes;
- The changes were denied despite the fact that the Attorney General, who has statutory standing to enforce terms of charitable estates in Pennsylvania, had apparently declined to take action;
- The court appointed an individual to serve as "amicus curiae" to examine and report on the Trustees' proposal to modify the trust terms and the individual's recommendations were clearly important to the ruling.
Pennsylvania Attorney Neil Hendershot (and Dickinson Law alum) who represented the Girard College Alumni Association, and who alerted me to this interesting decision, has additional details on his Pa Elder, Estate and Fiduciary Law Blog. Thanks, Neil!
Whether the trial court's decision will be appealed is not yet known.
And by the way, as evidence of the long litigation history of the Stephen Girard Trust, this latest ruling is filed under what appears to be the original -- or at least a very early -- Orphan's Court docket number: "O.C. No. 10 DE of 1885." A docket number that lasts 129 years? Impressive.
Here's another great educational video suggestion from John Marshall Law School's Barry Kozak.
Unfortunately, this video is in a format that I cannot show directly here. Nonetheless, I'm recommending it too, and providing the link. Alanna Shaikh's "How I'm Preparing to Get Alzheimer's" is provocative, with great dashes of wry humor. She uses her father's twelve year history of dementia as incentive to prepare herself for getting dementia. Alanna rejects "denial" and she's realistic about the likelihood of "prevention or cure" in her lifetime. She talks about preparing for the "Alzheimer's Monster."
Listen to her practical steps to prepare. What do you think of them? Realistic? What I appreciate is her focus on working harder to become a better person now, in hope of carrying forward that quality as a deeply engrained personality trait. She's echoing my own belief, based on observation, that "personality" tends to concentrate over time, with the strongest held traits lasting the longest -- whether for good or ill effect. Once the rational mind is no longer in control, those essential traits do seem to dominate.
Wednesday, August 27, 2014
Another video suggestion for the classroom from Barry Kozak at John Marshall Law School, this time demonstrating the history of modern human population growth, and highlighting income and longevity in the U.S. and China. I first watched this interesting video at the prompting of Professor Issi Doron, Haifa University. The energetic speaker, Hans Rosling, is a professor of international health at Karolinska Institute in Sweden, and also the founder of Gapminder Foundation that creates the dynamic graphs.
Tuesday, August 26, 2014
Barry Kozak, Director of Elder Law Programs at John Marshall Law School, recently shared with us a copy of a syllabus for his new course on elder law. He's making a conscious choice to organize his class sessions to highlight core concepts addressed by the Chicago Declaration on the Rights of Older Persons. He's assembled a list of great short videos for use in class, and he's allowed us to pass on his suggestions to readers of our Blog. Thanks, Barry!
Here's a great starting point, a four minute video from HelpAge USA and Pfizer Inc. that introduces the concept of global aging as an important driver of economic growth. Instead of wringing our hands over the aging tsunami, these speakers urge this phenomenon as a reason to think creatively.
Monday, August 25, 2014
Thomas Jefferson School of Law Professor Susan Bisom-Rapp and Middlesex University (UK) Business School Professor Malcolm Sargeant, both with deep expertise in employment and labor law, have joined forces to examine the long-range impact of discrimination against women during the course of their working lives. Based on experiences in the U.S. and the U.K., they recommend a comprehensive strategy to remedy identified problems. Their article, "It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women - The U.S. and U.K. as Examples," was published in 2014 in theUniversity of Illinois' Elder Law Journal. Here's a tantalizing introduction:
"This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination."
Professor Bisom-Rapp is also a co-author of The Global Workplace: Internatioanl and Comparative Employment Law - Cases and Materials, now in its second edition.
Friday, August 22, 2014
From our good friends at the National Senior Citizens Law Center (NSCLC), which has offices in California and Washington D.C., details of a major fellowship opportunity for law school graduates for 2015 -- but interested individuals will need to work quickly:
The Position: NSCLC seeks to sponsor law student applicants for 2015 Fellowships, including school-based fellowships, the Borchard Foundation Center on Law and Aging Fellowship, the Equal Justice Works Fellowship, the Skadden Fellowship, and others. Work could commence in summer or fall 2015. The joint application process between NSCLC and the applicant for a 2015 fellowship would begin in summer 2014. The location for the Fellow is Los Angeles, Oakland or Washington, D.C., depending on the fellow’s preference, the subject matter, and NSCLC’s needs.
The Project: NSCLC staff will work with the applicant to prepare a fellowship application for a project of the applicant’s choosing, in any area of NSCLC’s expertise, including income security advocacy, issues affecting dual eligibles (those on both Medicare and Medicaid), and Medicaid issues around community-based options for long-term care, including assisted living. NSCLC attorneys will work very closely with prospective fellowship applicants to develop a fellowship project that meshes NSCLC priorities with the applicant’s interests and talents. We have hosted Borchard and Skadden fellows in the past, and hope to continue and expand our fellowship program.
Qualifications: The ideal candidate has a genuine and documented commitment to working for poor and underserved populations, high-caliber legal research and writing skills, and the ability to take initiative and work independently. A commitment to a public interest career is extremely desirable. Individuals with ties to low-income, racial/ethnic minority communities, and other underserved populations are encouraged to apply.
Interested candidates are instructed to send a cover letter, resume, law school transcript, writing sample, and a list of three references to Katrina Cohens, firstname.lastname@example.org.
Further, substantive questions about the fellowship program can be directed to NSCLC's current Skadden Fellow, Hannah Weinberger-Divack, at email@example.com.
Deadline for applications for 2015 positions: Aug. 25, 2014.
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."