Monday, May 18, 2015
The University of Surrey in the UK is hosting an international conference on July 6-7 on "Intersections of Ageing, Gender and Sexualities," with speakers from Israel, Iran, Taiwan, Hong Kong, Spain, Italy, Australia, South Africa, New Zealand, the U.S., and, of course, the U.K.
Sociology Professor Toni Calasanti from Virginia Tech is giving the opening keynote address. The half day sessions are separated into "themes," including Embodiment, Temporal (Dis)location, Queer Kinship, Representations, Intersections, and Age, Gender, Sexuality and Care. Several of the sessions explore relationships between sexuality and menopause.
For more on the program, see here.
Friday, May 15, 2015
On May 12, the U.S. Department of Justice announced resolution of a disabilities discrimination complaint initiated by residents of a Continuing Care Retirement Community (CCRC) in Virginia.
The resolution includes filing of a complaint and consent order that resolves allegations that Fort Norfolk Retirement Community Inc. (Fort Norfolk) violated the Fair Housing Act by instituting policies that discriminated against residents with disabilities at Harbor’s Edge, a CCRC in Norfolk, Virginia:
The consent order, which still needs to be approved by the court . . . along with a complaint, in the U.S. District Court of the Eastern District of Virginia. The complaint alleges that beginning in May 2011, Fort Norfolk instituted a series of policies that prohibited, and then limited, residents in the assisted living, nursing and memory support units at Harbor’s Edge from dining in dining rooms or attending community events with independent living residents. The complaint also alleges that when residents and family members complained about these policies, Fort Norfolk retaliated against them. In addition, the complaint alleges that Fort Norfolk had polices that discriminated against residents who used motorized wheelchairs by requiring those residents to pay a non-refundable fee, obtain liability insurance and obtain Fort Norfolk’s permission.
Under the consent order, Fort Norfolk will pay $350,000 into a settlement fund to compensate residents and family members who were harmed by these policies. Fort Norfolk will also pay a $40,000 civil penalty to the United States. In addition, Fort Norfolk will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.
There is a history of similar issues arising in other CCRCs. For example, in 2008, in California, CCRC resident Lillian Hyatt initiated, and eventually resolved to her satisfaction, a discrimination claim based on a ban on "walkers" in the dining rooms of her community.
As the average age of residents in CCRCs has increased in recent years, the "appearance" issues are sometimes raised as a marketing or image concern, contrasting sharply with the expectations of individual residents as they age and seek continued access to the full range of services in their community.
Our thanks to Karen Miller, Esq., of Florida, for bringing the recent Virginia case to our attention.
Friday, May 1, 2015
Criminal Record? Is Life-Time Ban from Care Industry Employment Necessary to Protect Older, Vulnerable Persons?
In 2003, in Nixon v. Commonwealth, Pennsylvania's Supreme Court struck down a provision of the state's Older Adult Protective Services Act that imposed an absolute bar on designated care "facilities," including nursing homes, personal care homes, and home health agencies, prohibiting them from hiring "new" employees who had been convicted of certain crimes. The Court concluded that the prohibition, which affected only "new" employees, or those working at a covered facility for less than one year, did not bear a real and substantial relationship to the Commonwealth's interest in protecting the elderly, disabled, and infirm from victimization, and therefore unconstitutionally infringe[d] on the Employees' right to pursue an occupation."
Twelve years later, the Pennsylvania legislature, despite consideration of many proposals to "fix" the "Nixon case problem," still had not amended the statute. (This is the second time in a week that Pennsylvania's speed -- or lack thereof -- in enacting important reforms has attracted media attention.) As explained by NPR in a feature story by Carrie Johnson, a new lawsuit again challenges Pennsylvania's employment ban:
In 1981, when he was just 18, [Tyrone] Peake was arrested with a friend for trying to steal a car to take a girl home after a long weekend. "No, we never got the car," Peake said. "We broke the ignition column and then the cops came."
Peake couldn't even drive back then. He says he was just along for the ride. He never went to prison. Instead, he got probation. But that single charge years ago still haunts him, sometimes even after he's gotten work....
"I've been fired from three jobs," Peake said, "because [of] having a criminal record. And my record is like 32 years old, and I haven't been in trouble since then." A lot's happened since the 1980s for Peake. He went back to school, and he's been working part time as a counselor for men addicted to drugs and alcohol. But the law prevents him from being hired full time to work in a nursing home or long-term-care facility because of that single criminal conviction.
Peake's history of attempting to get on the right side of the law presents a dramatic contrast between the law's laudable purpose of protection of vulnerable adults and its sometimes harsh effect. For more, see NPR's Can't Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That.
May 1, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 23, 2015
As summarized in a recent article in the Washington Post, a new study places Washington D.C. fourth in the nation for seniors at hunger risk:
"The report says that more than 20 percent of the District’s elderly have concerns about eating enough food or the right kind of food, compared with more than 24 percent of seniors in Mississippi.
The estimates of senior hunger range from about 8 percent in Minnesota to more than 26 percent in Arkansas, which was ranked highest among states where seniors face the threat of hunger. Virginia and Maryland both had rates of about 14 percent.
The analysis – conducted by two university researchers on behalf of the nonprofit National Foundation to End Senior Hunger and the National Association of States United for Aging and Disabilities – says nearly 15.5 percent of elders, or 9.6 million people, in the United States face the threat of hunger...."
My thanks to George Washington Law Professor Naomi Cahn for sharing this article. We agree -- depressing news.
Tuesday, April 21, 2015
On April 20, while the jury was hearing oral arguments on the high profile case of State of Iowa v. Henry Rayhons, I joined an academic colleague, Dr. Claire Flaherty, a neuropsychologist from Penn State Hershey Medical Center, to discuss the implications of this criminal case, during a Smart Talk public radio program in central Pennsylvania. Claire and I have been engaged in a cross-discipline dialogue for about two years about a host of legal questions that can arise with a diagnosis of any form of dementia, including FTD and Alzheimer's Disease. This time we were talking about the challenges of finding the right balance between protection from harm and recognition of human rights when the issue is sexual intimacy. Dr. Flaherty's clinical background, including her experience counseling individuals and families who are coping with the realities of dementia, helped make this a very down-to-earth conversation on a sensitive subject for live radio.
Our half of the program, was preceded by Joanne Carroll, president of TransCentral PA, and therapist and social worker Alexis Lake, a therapist and social worker who counsels LGBT clients, who discussed challenges and rights for transgender, gay, lesbian, and bi-sexual people, and the progress that has been made in the last decade, even as more progress needs to be made. I was struck by their frankness, both about their personal journeys, and the potential costs for anyone transitioning, including simple costs associated with new documents of identity, to bigger questions about how to pay for any surgeries, including whether Medicare will pay for the older person's surgery.
UPDATE: Here is an alternative link to the Smart Talk Program described above, on "SoundCloud," and available in three segments, each about 15 to 20 minutes in length. Our discussion of dementia and consent to sexual relations starts at about the 9 minute mark of Segment B.
April 21, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicare, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, April 17, 2015
Scott E. Townsley, a very bright attorney, an adjunct associate professor at UMBC's Erickson School of Aging Studies, and a principal with CliftonLawsonAllen LLP, invited me to join him recently for a presentation to the 2015 Mid-Atlantic Region Resident Council Conference in Silver Spring, Md. (The lovely D.C. area cherry trees were in full bloom that day.)
Our theme was "Hot Topics in Continuing Care." Scott, a regular consultant to nonprofit CCRCs, used his deep experience in senior housing to outline his perspective on the biggest issues facing CCRCs. In preparation for my part, I reached out to my contacts in resident groups around the country and asked them to share with me their biggest concerns.
We then trimmed down our two respective lists and used a Point/Counter Point approach to the debate. Do any of our readers remember 60 Minutes' James Kirkpatrick and Shana Alexander? (Okay, how about Dan Aykroyd and Jane Curtin's lampoon of the Point/ Counter Point format? I think it is fair to say that we were less political than the first combo, and more polite -- if less humorous -- than the SNL crew. But we had fun.)
With a tip of the hat to David Letterman in borrowing his "top ten" format, here is a very distilled version of my list of Resident Concerns:
10. What does it really mean to be a nonprofit CCRC in 2015?
9. Do we need to worry about conversions of nonprofit CCRCs to for-profit?
8. What is the right response to the trend that residents are older and more disabled, even when first entering the community?
April 17, 2015 in Consumer Information, Dementia/Alzheimer’s, Discrimination, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations, Web/Tech | Permalink | Comments (3) | TrackBack (0)
Friday, April 10, 2015
Web-Cameras in Nursing Homes: Do They Invade Privacy (and Whose Privacy or Interests are Paramount)?
In Philadelphia, the decision of a nursing home to remove the compact video camera attached to a computer owned by a 59 year-old disabled resident has triggered a debate about legal issues associated with the resident's broadcasts. On the one hand, the resident, who had lost the ability to speak and who had limited mobility associated with cerebral palsy, used the camera to facilitate communications with his family. But, to the nursing home:
... where he has lived for decades, the camera was a watchful eye, scrutinizing its staff's every move and capturing images of people whose privacy they're responsible to protect.
Stu's computer equipment was abruptly removed in mid-December, and he was asked to write a note defending his access to it. Family members called it a "cruel hurdle" for a man with limited mobility who selects each letter by pushing the back of his head against a switch.
In another note pleading for his webcam to be returned, Stu, 59, wrote: "WE ARE NOT SPYING ON ANYBODY!" The Sandersons unwittingly became part of a splintered national debate about the role of video cameras in long-term care facilities.
Additional coverage, outlining the delicate case, and suggesting broader issues, is available here and here. Part of the background for the current issues includes a 2012 investigation of suspected abuse of a resident in a different nursing home in Pennsylvania, where a web camera reportedly led to criminal charges against nursing home employees.
April 10, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 9, 2015
On February 27, Pennsylvania's new governor, Tom Wolf, issued Executive Order 2015-05 regarding "participant-directed home care services."
The order reportedly reflects the Governor's interest and support for home care for seniors and persons with disabilities, while also recognizing potential issues such as low wages or absence of benefits, high turnover, inconsistent quality or lack of standards. The order:
- Creates a Governor's Advisory Group to advise the administration on "ways to improve the quality of care delivered" through publically funded home care service programs;
- Recognizes a "representative for Direct Care Workers for the purpose of discussing issues of mutual concern," while also authorizing a procedure for "election" of the representative; and
- Establishes a "Direct Care Worker List" of all workers paid through state programs, and further permits "an employee organization that has as one of its primary purposes the representation of director care workers" to petition the state to represent a particular unit of direct care workers.
As set forth in recent media reports, the Executive Order has met with resistance from some quarters, including those who are challenging the order as unlawfully permitting "unionization" of home care workers. On April 6, 2015, a complaint seeking injunctive relief from implementation of the executive order was filed in the Pennsylvania Commonwealth Court by a home care worker and his long-time client, a "quadriplegic adult with muscular dystrophy receiving care from the [state administered] Attendant Care Services Act.." The complainants are reportedly represented by "The Fairness Center, a conservative public-interest law firm."
April 9, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, April 7, 2015
St. Louis University's Journal of Health Law and Policy has recently released a theme issue, focused on "Health Care Reform, Transition and Transformation in Long-Term Care." A great line-up of articles and authors, including:
- Home & Community-Based Long-Term Services and Supports: Health Reform's Most Enduring Legacy? by Marshall B. Kapp
- Care Coordination for Dually Eligible Beneficiaries, by Katie M. Dean and David C. Grabowski
- The Challenge of Financing Long-Term Care, by Judy Feder
- Rationalizing Home and Community-Based Services Under Medicaid, by Laura D. Hermer
- The Broken Promise of OBRA '87: The Failure to Validate Survey Protocol, by Malcolm J. Harkins III
In addition, there are two relevant Notes written by SLU students:
- Short-Stay, Under Observation. or Inpatient Admission? How CMS' Two Midnight Rule Creates More Confusion and Concern, by Rachel A. Polzin
- Disclosure for Closure? Why the Self-Referral Disclosure Protecol Process Paired with the 60-Day Overpayment Rule Creates More Headaches than Solutions, by Peter J. Eggers
April 7, 2015 in Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Wednesday, April 1, 2015
The AARP Public Policy Institute has recently published an Insight Report (March 2015) on older workers and unemployment following the recent economic crisis. The report draws upon surveys of persons aged 45 to 70 affected by unemployment during the last 5 years. The primary focus of the analysis is on "reemployment," including what strategies were used in successful efforts to find jobs.
Lots of interesting information here. Even though the rate of unemployment is lower for older workers, those losing their jobs later in life stayed unemployed longer than younger job seekers, and their recovery jobs reportedly paid less. Some of the findings, however, are of equal relevance to younger job seekers. One set of responses was especially sobering, on a question about possible working life regrets:
"When asked whether there was anything they wished they had done differently over their working lives or careers to better position themselves for dealing with unemployment, 52 percent said 'yes.' The most common answer —65 percent — was a wish that they had saved more money. Also of note, 48 percent wished they had gone back to school to complete or get another degree, and 38 percent wished they had chosen a different field. The unemployed and the long–term unemployed were more likely than the other groups to wish they had chosen a different field. Those who elected that regret also tended to be younger (56 percent were ages 45 to 54)."
Many thanks to Professor Naomi Cahn at George Washington Law for alerting me to this report, and sending a link to related Wonk Blog coverage of the study from the Washington Post -- lots of well-explained graphs from an oral presentation that accompanied the launch of AARP's written report.
Tuesday, March 31, 2015
In DeCambre v. Brookline Housing Authority, decided by a federal district court in Massachusetts on March 25, the issue was whether a disabled adult living in Section 8 housing becomes ineligible for the housing subsidy because of disbursements to her from a special needs trust, funded as the result of a personal injury settlement.
Although the court affirmed the Bureau of Hearings and Appeal ruling on her income and expenses, thus disqualifying her for public housing benefits, the court also called for clearer federal guidelines to permit better planning for needy beneficiaries:
"[This case demonstrates the serious problem that beneficiaries of irrevocable trusts face; in particular, those that seek to pour lump-sum settlement funds into irrevocable trusts. But until the rules and regulations are clarified, public housing authorities should provide clear guidance and instruction for potential tenants with regard to their financial planning and spending. A more thorough and thoughtful analysis is required by public housing authorities when determining Section 8 eligibility, until further guidance is provided by the HUD."
Sunday, March 29, 2015
Leonard M. Alexander, in conjunction with his son, my good friend and former Dickinson School of Law faculty colleague, Peter Alexander, is the author of It Takes A Village: The Integration of the Hillburn School System. The brief, inspiring book provides another timely look at the challenges of desegregation and demonstrates the important roles played by persistent local leaders in moving towards integration. Leonard Alexander also reminds us that opposition to change was not solely a "southern" problem:
"Hillburn, New York, has always been a simple, quiet community. Part of its charm was the appearance that people of different races lived in harmony. The harmony, unfortunately, was attributable only to the social norms of the time. The white men in the village controlled everything -- jobs, banks, land -- and the colored people, as we were known and referred to, would be taken care of as along as we stayed in our place.
'Our place' meant we should not be too vocal or too uppity. Also, 'our place' meant that we would live on the colored side of town (with the dividing line being Route 17). 'Our place' also meant that we would attend a separate school from the main grammar school in the village. Since 1889, four years before the village of Hillburn was chartered, the colored children attended grammar school that was set aside for us. The school was situated alongside a babbling brook and it was known as Brook School. Unofficially, it was the colored school."
The book describes the efforts of Leonard Alexander's father, working with others in "the village," to obtain a key NAACP investigation and report in 1931 about the so-called "separate but equal" treatment of the town's two grammar schools. The evidence included the fact that new classroom texts were purchased only for the white school; the white's school's old books might then be sent to Brook School.
Leonard's book is also a testament to the importance of memory and storytelling. This is the story of multiple generations of the Alexander family's involvement with community action, education and civil rights.
In reading the book in one sitting, I was intrigued by the role that jobs played in the ability -- or understandable reluctance -- of community members to challenge inequality. Leonard's father worked for the New York City General Post Office, and that gave him the financial independence from the local factory owners to challenge their "Jim Crow" system. A small, poignant detail suggests the consequences of activism, as a white business owner and politico would attempt to curry favor (and, probably, votes) by passing out candy to local black children, unless he learned their last name was Alexander.
Congratulations to Leonard Alexander, and to proud son and co-author, Peter. And, by the way, how many of us have parents with "unheard" stories to share?
Wednesday, March 25, 2015
In advance of his appearance and in preparation for his focus on "Special Needs Planning," Stephen Spano, who is board certified as an elder law attorney by the National Elder Law Foundation (NELF) and whose firm concentrates its practice on elder law, estate planning and special needs planning, asked the students to watch two very interesting -- indeed inspiring -- Ted Talk videos.
Here is his first assignment -- and I look forward to seeing how he uses both videos with our students:
His second assigned video "homework" is from Aimee Mullins, who talks about "My 12 Pairs of Legs."
Tuesday, March 24, 2015
Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"
Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."
In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:
"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."
The article was published in the Columbia Law Review, March 2015.
Monday, March 9, 2015
On Sunday I had the interesting opportunity to be in the audience for the third performance of a new play, The Originalist, at Arena Stage in Washington D.C. Playwright John Strand has given Justice Antonin Scalia center stage and the spotlight for close to two hours, in a play filled with opera, literary references, plenty of legal humor, a few card games, and lots of verbal boxing between the justice and his young, liberal "contra" clerk.
The play makes deft use of Scalia's own words, drawn from opinions and public presentations, and actor Edward Gero wears the robes -- and wields Scalia's weapons -- with authority. Kerry Warren, holds her ground well, both as actress and antagonist in the role of the law clerk. The play concludes in the recent past, as Justice Scalia debates with the clerk the words he will announce from the bench for his dissent on the Defense of Marriage Act (DOMA) case, United States v. Windsor.
The play succeeds especially well in an important goal of the playwright, as identified in a lively post-production Q & A session with the audience. The play encourages serious discussion of what it means to "interpret" the Constitution. Through the voice of the clerk, it also asks whether there is any room for true solutions to emerge in the polarized world of left-right politics.
The Originalist also proved to be surprisingly relevant to themes in this Blog. Scalia is depicted as the aging lion in winter, given to occasional moments of introspection and an intriguing episode of pique (hint: what career aspiration may he have pondered?). At one point he is seen as attempting to justify his intransigence with the observation that he's growing old, a condition for which there is "no cure."
The play -- set in the intimate black box space of the Arlene and Robert Kogod Cradle -- is scheduled to run until April 26.
Thursday, February 26, 2015
A new research project on demographics of the U.S., with funding from The William and Flora Hewlett Foundation, brings together the Center for American Progress, the American Enterprise Institute, and demographer William H. Frey of the Brookings Institution. The project goals are:
- To document and analyze the challenges to democracy posed by the rapid demographic evolution from the 1970s to 2060
- To project the race-ethnic composition of every state to 2060, which has not been done for 20 years
- To promote a wide-ranging and bipartisan discussion of America’s demographic future and what it portends for the nation’s political parties and policy
The team's first report identifies a Top Ten list of demographic factors likely to impact the future of both policy-decisions and politics, including #6 on the "Graying of America." Graphics illustrate each of the projections, including this one on aging.
For more complete results, see The States of Change: Demographics and Democracy, 1974 to 2060.
Thanks to GW Law Professor Naomi Cahn for sending this report! The statistics should be useful for generating student discussion in a wide range of courses.
Tuesday, February 24, 2015
USA Today reports on home care workers "joining a nationwide movement" to raise wages, with rallies planned for "more than 20 cities in the next two weeks."
As described by journalist Paul Davidson,
"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging Baby Boomers over the next decade.
'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."
According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."
Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.
February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Friday, February 20, 2015
Seasons 22 Restaurants, with locations in more than ten states nationwide, has a reputation for dining that emphasizes farm-to-table freshness, naturally seasoned cooking, and with a pledge that nothing on the menu is over 475 calories. Cutting edge, and hip.
Not so hip are the allegations by the EEOC that since 2010 the chain "engaged in a nationwide pattern or practice of age discrimination in hiring hourly workers," as described in a lawsuit filed by the EEOC this month:
"According to the lawsuit, various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees, and telling applicants that Seasons 52 'wasn't looking for old white guys.'
Age discrimination violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit Civil Action No. 1:15-cv-20561-JLK, in U.S. District Court for the Southern District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks monetary relief for applicants denied employment because of their age, the adoption of strong policies and procedures to remedy and prevent age discrimination by Seasons 52, and training on discrimination for its managers and employees.
'This case represents one example of the barriers to hiring that some job applicants face,' said Malcolm S. Medley, district director for the EEOC's Miami District Office. 'Eradicating barriers to employment opportunities is a priority of the Commission.'"
Thanks to students in the Elder Law class at George Washington Law for sharing news of this case, which includes the response by Darden (the parent company) spokesman, denying the allegations and pledging to "defend this claim vigorously."
Thursday, February 19, 2015
Should an Individual's "Vulnerability" be a Defining Criterion for Social Welfare Policy or Services?
Emory Law Professor Martha Fineman, long known for her feminist jurisprudence, has attracted increasing attention for her work on specific concepts of dependency and vulnerability. Her 2008 analysis of vulnerability, rather than, for example, gender or race, as a tool to shape a more responsive state and a more egalitarian society, has been seminal.
Syracuse Law Professor Nina Kohn, in her latest work, "Vulnerability Theory and the Role of Government," notes the "attractiveness" of vulnerability theory, but pushes back against the growing reliance on it as a policy tool, using her own understanding of old-age related government services as the basis for comparison. She raises a serious concern about the potential for the current definition and focus on vulnerability to promote "unduly paternalistic laws." For example, Professor Kohn writes:
"Vulnerability theory as currently articulated would focus attention on maximizing safety and security without adequately considering the impact of potential laws and policies on individual autonomy, or how a sense of autonomy may actually contribute to an individual’s safety and security. This effect is particularly problematic in the context of evaluating laws that seek to protect individuals from entering into or maintaining personal relationships perceived to be unsavory, as is the case with many of the policies designed to protect older adults from abuse, neglect, and exploitation. This is because the autonomy being undermined is the autonomy of the person whom the state is trying to help; since undermining an individual’s autonomy can harm that person in both tangible and intangible ways, the state’s actions are prone to being at least partially counterproductive. Thus, vulnerability theory might be of greater prescriptive value if it distinguished between infringements on autonomy where the person whose autonomy is being sacrificed is the supposed beneficiary of the infringement and infringements on autonomy designed to benefit another."
Professor Kohn's article, published in the most recent issue of Yale Journal of Law and Feminism, uses recent changes in California law to demonstrate a framework for revision of the current theory of vulnerability, with a goal of identifying a "standards based approach" for specific government response.
Wednesday, February 4, 2015
Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care. In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:
"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.
Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.
Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”
The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure. The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:
"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.
One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.
Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.
But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."
The full articles are interesting -- we will link to any future parts of this bold series.
February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)