Tuesday, November 17, 2015

Nudging an Older Co-Worker to Retire? Think Twice....

The Washington Post's magazine section runs a Work Advice column by Karla Miller.  A recent question was intriguing:

As a longtime colleague of Susan’s, I’ve been asked by her boss to feel out whether she really means to leave the office only if “taken out in an ambulance or a coffin” (the boss’s words). I agree that it is probably time for her to retire (she is financially well off), but I also know she gets great satisfaction from her work. Should I broach the subject with Susan as a caring co-worker?

The response urges caution in participating in the employer's plan, observing bluntly "that smells like a steaming heap of age discrimination."

For the full discussion, See @Work Advice: Putting the Old, Gray Co-Worker Out to Pasture.

November 17, 2015 in Consumer Information, Current Affairs, Discrimination, Federal Statutes/Regulations | Permalink | Comments (1)

Wednesday, October 14, 2015

DOJ Settlement vs. CCRC

The Department of Justice announced a $255,000 settlement vs. a CCRC.  United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community in Lincolnshire, Illinois explains a proposed settlement (the settlement has to be approved by the court).  The press release explains that this settlement resolves "allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois..."

The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability.  Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.

As part of the settlement, the CCRC "will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy.  Additionally ... the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country."

The complaint and consent order are available for download here.

October 14, 2015 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Housing | Permalink | Comments (0)

Monday, September 28, 2015

Student Writing Competition on Disability Law: Entries Due by January 15, 2016

Thomas Jefferson School of Law is hosting its second annual student writing competition focusing on disability law.  The Crane Writing Competition, named in honor of a Thomas Jefferson alum, Jameson Crane III, seeks to encourage student scholarship at the intersection of law and medicine, or law and social services.  A central purpose is to further development of legal rights and protections, and improve the lives of those with disabilities.

Who can enter?  The competition is open to currently enrolled law students, medical students and doctoral candidates in related fields, who attend an accredited graduate program of study in the U.S. 

Deadline for entries?  January 15, 2016 (by midnight, Pacific Standard Time) via electronic submission.  For details see the competition website at Thomas Jefferson School of Law: http://www.tjsl.edu/cranewritingcompetition

What will be your topic? The competition accepts papers on a wide range of topics related to disability law, including legal issues arising from employment, government services and programs, public accommodations, education, higher education, housing and health care.  This should integrate well with students currently taking or who have recently completed a seminar course, thus allowing that all important "double value" for good papers.

Prizes include cash ($1,500 to first place; $1,000 for each of two second place winners), plus potential publication.

My thanks to Professor Susan Bisom-Rapp for sharing news of this year's competition.  She is coordinating the competition and you can send questions directly to Susan. 

September 28, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, Science | Permalink | Comments (0)

Wednesday, September 2, 2015

Seniors Who Cannot Make Ends Meet -- UCLA Documents "The Hidden Poor"

UCLA's Center for Health Policy Research has issued its August 2015 report on "The Hidden Poor," using county-by-county data to demonstrate that "federal" definitions of poverty are not a sufficient measure of true poverty for seniors.  What are the "hidden poor?"  The UCLA report explains:  "The Hidden Poor are defined as those who have incomes above 100 percent of the Federal Poverty Level (FPL), but who do not have enough income to make ends meet as calculated by the Elder Index."

A recent article in the Sacramento Bee highlights key components of the analysis: 

More than 300,000 elderly Californians are officially poor, as measured by the federal government, but their numbers triple to more than 1 million when the “hidden poor” are counted, according to a new study from UCLA’s Center for Health Policy Research.


National poverty guidelines say that for a single elderly adult living alone, the poverty line is $10,890 a year, but UCLA’s “elder index” puts it at $23,364 in California.


Those “hidden poor” Californians over 65 tend to be Latino or black. Their greatest concentrations are found in rural counties with overall low income levels, topped by Imperial County, where more than 40 percent of the elderly are the hidden poor....


The study said population groups with especially large proportions of the hidden poor include grandparents raising grandchildren, elderly with adult children living at home, and single elders.

Accurate measurements of poverty are core to planning of resources for any age group, including seniors.  How does your state account for needy seniors? 

Read more here: http://www.sacbee.com/news/politics-government/capitol-alert/article32941743.html?utm_source=dlvr.it&utm_medium=twitter#storylink=cpy

September 2, 2015 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, Medicaid, Statistics | Permalink | Comments (0)

Register Now: Webinar on Balancing Protection and Self-Determination

The National Consumer Law Center (NCLC),  the ABA  and the Quality Trust for Individuals with Disabilities announce an upcoming webinar on September 22, 2015 from 2-3:30 edt.  According to the website,

Research shows that empowering individuals to actively participate in personal decision making improves life outcomes and can reduce the risk of abuse and exploitation.  There is a risk of abuse and exploitation in all models of decision making for persons with differing abilities. An overly protective response to situations where a person with varying levels of capacity may be at risk can stifle self-determination and empowerment. Protection needs to be carefully balanced with protecting human and constitutional rights. Adults have a basic right to make choices, good or bad, and determine the course of their lives. An overly aggressive, or inappropriate protective response to limited capacity can itself be a form of abuse. This session will talk about recognizing the signs and signals of abuse, neglect (self-neglect) and exploitation, tools to maximize communication with persons with differing abilities, and promoting self-determination and choice through supported approaches that mitigate against risk and empower individuals. The session will explore the application of the Supported Decision Making model to assist persons in making choices, increase access to positive life outcomes, and reduce the risk of harm.

The webinar is free. To register click here.

September 2, 2015 in Cognitive Impairment, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0)

Tuesday, August 25, 2015

Subtle Messages in Webinar on "Managing" the Aging Academic Workforce?

An interesting approach to the topic of aging faculties in higher education recently came across my virtual desk in the form of an advertisement for an upcoming webinar (with an interesting price tag to match).  The title of the program is "Managing and Supporting an Aging Workforce," offered by Academic Impressions (a company I'm not familiar with) on November 15, 2015 from 1 to 2:30 p.m. EST. 

The brochure advises "Given the nature of this topic, this online training is appropriate for human resources professionals, department chairs, deans, and senior administrators who deal with faculty and personnel issues."

Here's the description, which strikes me as charting a careful approach to helping (encouraging?) older faculty members make the decision to retire, without running afoul of age discrimination laws.

Experienced academic and administrative employees are the pillars for many institutions in higher education. However, with many faculty and staff members working well into their 60’s and 70’s, administrators face the challenge of supporting an aging workforce while having the appropriate policies and procedures in place.

Learn how to better balance the interests of your employees with the needs of your institution. This webcast will cover:

  • Laws governing discrimination and how to remain in compliance
  • Appropriate steps for dealing with diminishing capabilities
  • Performance reviews, policies, and procedures

August 25, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Retirement, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Sunday, August 16, 2015

2015 National Aging & Law Conference

The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section.  The website describes the conference

The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country.  The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.

The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and  legal service development and delivery.  The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them. 

The agenda is available here. To register, click here.  Early bird registration ends August 28, 2015.


August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)

Wednesday, August 12, 2015

Borchard Center Announces 2015-16 "Law and Aging Fellows"

Mary Jane Ciccarello, co-director of the Borchard  Center on Law and Aging, recently sent us the latest news on the fellowships announced for the 2015-16 grant year.  There is strong competition for these key sources of funding for recent law school graduates to engage in new or expanded initiatives in law and aging.  The new fellows include: 

  • Krista Granen, a 2015 University of California-Hastings graduate, who will partner with Bay Area Legal Aid in San Francisco to implement a multi-faceted project to provide direct services, establish a mobile “pop-up” clinic to accommodate seniors’ physical and capacity based impairments, and promulgate resource materials in the intersectional areas of consumer protection and Social Security. Her project will promote economic security for low-income seniors residing in Santa Clara County, a county that simultaneously experiences extreme class stratification and a dearth of necessary legal services. 
  • Jennifer Kye, a 2014 UVA graduate, at Community Legal Services of Philadelphia, who will implement a three-part project focused on increasing vulnerable seniors’ access to Medicaid home and community-based services. Her project will include: (1) systemic advocacy at the state level to expand the availability and improve the delivery of these critically needed home-based services; (2) development of a self-help manual that will allow seniors to advocate for themselves in accessing services in their own homes; and (3) direct representation of low-income older adults in obtaining and keeping home-based services and supports.


  • Stephanie Ridella Vittandsm, a 2014 Chicago-Kent graduate, who will continue her work at the Chicago Center for Disability and Elder Law, advocating for low-income seniors in housing matters, including eviction defense, public housing voucher termination defense, and representing seniors evicting tenants or family members from their homes. By prioritizing time-sensitive housing cases and conducting expedited intake interviews, she can continue to intervene in emergency housing cases.  She will continue to administer the Pro Se Guardianship Help Desk, which provides assistance to petitioners seeking guardianship over family members.   


  • Shana Wynn, a 22015 graduate of North Carolina Central Law School, who joins Justice in Aging (formerly the National Senior Citizens Law Center) and the Neighborhood Legal Services Program (NLSP) in Washington, DC.  Ms. Wynn will work closely with Justice in Aging attorneys to formulate policy recommendations to improve the Social Security Administration’s (SSA) representative payee program for Supplemental Security Income (SSI) recipients and Social Security beneficiaries. Ms. Wynn will partner with NLSP to provide pro bono services to low-income seniors and secure access to healthcare and public benefits such as SSI. The primary goal of the project is to identify and address problems relating to SSA’s representative payee program as a means to better protect our most vulnerable seniors from misuse of their modest incomes.
Congratulations to these hard working Fellows.  For law students or recent graduates thinking about applying for a future Borchard Law and Aging Fellowship grant, a reminder that the annual deadline is in mid-April.  Start your planning now!

August 12, 2015 in Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (1)

Monday, August 10, 2015

FAQ on Service Animals Under the ADA

The Department of Justice, Civil Rights Division, Disability Law Section has released an FAQ on service animals and the ADA. The 37 FAQ, Frequently Asked Questions about Service Animals and the ADA runs the gamut from definitions to general rules, to breeds of dogs, to exclusions, to certifications and registrations, and more.  DOJ offers this introduction to the FAQ: 

The Department of Justice continues to receive many questions about how the Americans with Disabilities Act (ADA) applies to service animals. The ADA requires State and local government agencies, businesses, and non-profit organizations (covered entities) that provide goods or services to the public to make "reasonable modifications" in their policies, practices, or procedures when necessary to accommodate people with disabilities. The service animal rules fall under this general principle. Accordingly, entities that have a "no pets" policy generally must modify the policy to allow service animals into their facilities. This publication provides guidance on the ADA’s service animal provisions and should be read in conjunction with the publication ADA Revised Requirements: Service Animals

(auth. note, ADA Revised Requirements: Service Animals found at http://www.ada.gov/service_animals_2010.htm). To learn more about the ADA, visit ADA.gov.

August 10, 2015 in Discrimination, Federal Statutes/Regulations | Permalink | Comments (0)

Tuesday, July 28, 2015

ADA Turns 25

The Americans with Disabilities Act (ADA) was signed into law 25 years ago, on July 26, 1990, by President George H.W. Bush. According to the information on the ADA website

Twenty-five years ago, through the Americans with Disabilities Act (ADA), our nation committed itself to eliminating discrimination against people with disabilities. The U.S. Department of Justice’s Civil Rights Division  is proud to play a critical role in enforcing the ADA, working towards a future  in which all the doors are open to equality of opportunity, full participation,  independent living, integration and economic self-sufficiency for persons with  disabilities. In honor of the 25th anniversary of the ADA, each month the  Department of Justice will spotlight efforts that are opening gateways to full  participation and opportunity for people with disabilities.

The efforts that are spotlighted can be accessed here.  Concomitant with the anniversary, the Social Security Administration's July 27, 2015 blog, Supporting the Americans with Disabilities Act, focused on the ADA's anniversary. 

There were a number of articles highlighting the ADA's anniversary.  For example, the New York Times  ran a Room for Debate on the ADA, The Americans With Disabilities Act, 25 Years LaterNPR did a story on the ADA's influence on other countries, How A Law To Protect Disabled Americans Became Imitated Around The World and the Washington Post ran an article by Professor Robert L. Burgdorf Jr., Why I Wrote the Americans with Disabilities ActPresident Obama spoke about the anniversary of the ADA and the White House website has a page devoted to issues facing Americans with disabilities. 

If you cover the ADA in your classes, there are many more useful articles and stories released as a result of the  ADA's 25th anniversary. 

July 28, 2015 in Current Affairs, Discrimination, Federal Statutes/Regulations, International, Social Security | Permalink | Comments (0)

Monday, July 27, 2015

Law Reform: A Proposed Remedy for "Deeply Toxic" Damage to Higher Ed Caused by Abolition of Mandatory Retirement

Bentley University Professors  Beverley Earle and Marianne Delbo Kulow have a nicely provocative article in the Spring 2015 issue of the Southern California Interdisciplinary Law Journal, titled The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair.  From the introduction:

There are very few positions that offer the level of protection that tenure does. One such position is a federal judgeship, which is distinguishable because of the very public nature of the work. If a judge performs inadequately, community backlash may quickly develop that could usher in a publicly coerced retirement. For example, a state judge, who recently gave a lenient sentence to a convicted rapist of a minor who committed suicide, has announced his retirement following pubic outrage.Tenured faculty members, unlike judges, labor in the relative isolation of the classroom, where feedback comes at the end of the semester and then only via student evaluations. This creates the first of two problems for higher education in the United States stemming from the abolition of mandatory retirement: the difficulty of removing a tenured professor for poor performance.


In most universities, only egregiously poor performance by a tenured professor is flagged for termination; outdated, boring, or barely adequate, teaching may not sufficiently stand out to warrant a more intense review.  There is also a slow feedback loopdue to minimal, if any, post-tenure peer classroom evaluations and skepticism about student evaluations of teaching. Therefore, often many semesters pass before there is sufficient evidence to persuade a professor or her superiors that the tenured professor's employment status should be reevaluated. Inadequacies in scholarship can be even more difficult to discern, given the common time lag between research and publication, as well as the variations between disciplines in frequency, length, and format of publications.


The second distinct challenge faced by higher education caused by the coupling of the abolition of mandatory retirement with the institution of tenure is the prospect of stagnant departments: no new faculty may be hired because there are no vacancies....

The authors' proposed reforms include "expiration" of tenure for professors reaching age 70, while permitting continued employment opportunities on the same evaluative standards as non-tenured faculty. 

July 27, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Retirement, Statistics | Permalink | Comments (0)

Friday, July 24, 2015

From SSRN: "Abuse of Elders with Mental Illness" by Prof. James T.R. Jones

Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN.  In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age.  This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:

Elder abuse is a major international problem, and scandal.  It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it.  Elder abuse occurs in a variety of ways.  It can be physical abuse due to either active injury or passive neglect.  It can be psychological abuse through fear and intimidation.  It can be financial abuse due to theft or fraud.  Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives.  Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.

While all elders can be abused, those with mental illness are particularly vulnerable.  This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia.  Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.

This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse.  It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.

The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.   


July 24, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)

Wednesday, July 22, 2015

Comparative Law: Practice Guide for Representing Vulnerable Clients in England & Wales

Law Society England Wales

The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia.  The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.

The guide warns that failure to "meet the needs of a vulnerable client" may trigger:

  • A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
  • A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
  • A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
  • Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.

The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:

Continue reading

July 22, 2015 in Cognitive Impairment, Discrimination, Ethical Issues, International, Legal Practice/Practice Management | Permalink | Comments (0)

Wednesday, July 8, 2015

Check Out This Blog

I always spend some time at the beginning of the semester talking with my students about language used to describe elders as well as attitudes and stereotypes. I was interested in seeing this blog, This Chair Rocks. As the blog author explains

So how come so many of us unthinkingly assume that aging equals a grim slide into depression, diapers, and dementia? That 20th century’s astonishing leap in life expectancy is a disaster-in-the making? Underlying all the hand-wringing is ageism: discrimination that sidelines and silences older people. And unlike racism and sexism, it has barely bleeped onto our radar.

So I’m on a crusade to get people of all ages to wake up to the ageism in and around us, cheer up, and push back.

The author also has a question & answer blog, Yo, Is This Ageist? that allows readers to submit questions that the author answers. What a great tool for students!


July 8, 2015 in Current Affairs, Discrimination, Weblogs | Permalink | Comments (0)

Friday, June 19, 2015

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

Plus, historian Hendrik Hartog provides his own commentary and response! 

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Saturday, May 30, 2015

Alzheimer's Activist Confronts Challenges of His Disease

The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:

When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.


But to some, Ellenbogen’s passion recently went too far.


After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.

For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.

May 30, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Monday, May 25, 2015

Modern Day Coverture? Medicaid Eligibility Rules' Harsh Effect on Married Women

University of South Dakota Assistant Professor of Law Thomas E. Simmons has an intriguing article in the summer 2015 issue of Hastings Women's Law Journal.  From his article, "Medicaid as Coverture," here are some excerpts (minus detailed footnotes)  to whet your appetite:

Not long ago, married women possessed limited rights to own separate property or contract independently of their husbands.  Beginning in the nineteenth century, most of the most serious legal impediments to women enjoying ownership rights in property and freedom of contract were removed....


Three twenty-first century developments, however, diminish some of this progress.  First, later-in-life (typically second) marriages have become more common.... These types of couples were not the spouses that reformers had in mind in designing inheritance rights or other property rights arising out of the marital relationship....


Second, perhaps as a product of advocacy for women's property rights, and perhaps out of a larger social remodeling, women's holdings of wealth have made significant advances.... [But] women of some wealth (in later-in-life marriages, especially) may in fact find themselves penalized by the very gender-neutral reforms that were designed to help them; especially, as will be unpacked and amplified below, when those reforms interface with Medicaid rules.


Third, beginning in the late twentieth century, the possibility of ongoing custodial care costs became the single greatest threat to financial security for older Americans.

As practicing elder law attorneys experience on a daily basis, Medicaid eligibility rules, despite the so-called "Spousal Impoverishment" protections, can impact especially harshly on married women as the community spouses.  They are often younger and thus will have their own financial needs, frequently have been caregivers before being widowed, but their personal assets may still be included in the Medicaid estate for purposes of determining their husbands' eligibility. This article takes a critical, interesting approach to that problem.  

May 25, 2015 in Discrimination, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (1) | TrackBack (0)

Monday, May 18, 2015

UK Conference on Intersections of Aging, Gender & Sexualities

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.    

May 18, 2015 in Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, International, Programs/CLEs | Permalink | Comments (0) | TrackBack (0)

Friday, May 15, 2015

Justice Dep't & CCRC Agree to Consent Order in Disabilities Discrimination Claim

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.

May 15, 2015 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing | Permalink | Comments (0) | TrackBack (0)

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)