Wednesday, April 26, 2017
Justice in Aging has announced a free webinar for May 17th, 2017 from 2-3 edt on Elder Financial Abuse & Medicaid Denials. Here is a description of the webinar
Financial exploitation can devastate low-income older adults, especially those who rely on Medicaid for their health and long-term care. For example, older adults who are victims of financial abuse may be denied eligibility for Medicaid because their abuser won’t turn over their bank records. Without Medicaid eligibility, the older adult may be threatened with eviction or involuntary discharge from a nursing home because of nonpayment. Legal services are critical to helping older victims of financial exploitation receive the medical care and services to which they are entitled. Join us for Elder Financial Abuse and Medicaid Denials to learn how to identify victims of elder financial abuse, what problems this exploitation can cause for Medicaid eligibility, and how legal services attorneys can help their older clients receive the benefits they need and prevent future problems accessing Medicaid.
To register for the webinar,https://attendee.gotowebinar.com/register/5875005469626032643?source=SALSA. Did I mention, it's free!
April 26, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs, Webinars | Permalink | Comments (0)
Sunday, April 16, 2017
The New York Times ran a story a few days ago about preventing financial exploitation. Declaring War on Financial Abuse of Older People starts with the story of a woman who acts when she finds out her grandmother had lost her life savings. (Just fyi, her grandmother's case was featured in a story in the New York Times in 2015). The woman didn't stop with just her grandmother's case, however. First she pushed to get action for her grandmother. Then, the story explains, she "[became] an activist, traveling around her home state of Washington to lecture and testify about the financial exploitation of older Americans. She has also become a lobbyist, exhorting state lawmakers to pass legislation that would toughen penalties for people who take financial advantage of vulnerable older people like her grandmother."
The article notes the variations among state financial exploitation statutes and how some states don't have specific elder financial exploitation statutes
A number of states have laws like this on the books, but they vary widely. According to the National Conference of State Legislatures, which tracks such laws, this type of financial abuse is an active topic in state capitals. Last year, 33 states, as well as the District of Columbia and Puerto Rico, considered measures against the illegal or improper use of seniors’ money, property or assets, in addition to fraud or identity theft targeting the older people.
Some states have shored up their existing laws. Last year, Idaho revised its definition of neglect of vulnerable adults to include exploitation. Illinois extended the statute of limitations to seven years from three for prosecuting a person accused of taking financial advantage of an older person or a person with disabilities.
Also, last year, Alabama passed the Protection of Vulnerable Adults from Financial Exploitation Act, to add a layer of protection to existing laws by requiring brokers and investment advisers who believe a vulnerable adult is being exploited to notify the Human Resources Department and the Alabama Securities Commission.
In those states without the specific statutes, convictions come with lesser penalties than those with specific elder financial exploitation statutes. "Stiffer penalties are necessary to combat a growing drain on the savings of those 60 and over, according to the National Center for Elder Abuse, a federal clearinghouse. In 2015, in Washington state alone, there were nearly 8,000 complaints to adult protective services about financial exploitation, a more than 70 percent increase over 2010. And such crimes are likely to climb simply because the retiree population is growing."
The article also discusses efforts at the federal level, including the Elder Justice Act and the efforts of the Department of Justice.
Thanks to Professor Naomi Cahn for bringing the article to our attention. Congratulations to Naomi and her co-author Amy Ziettlow on the publication of their book, Homeward Bound: Modern Families, Elder Care, and Loss.
Wednesday, April 12, 2017
NAPSA and NCPEA have released a research to practice brief on Correlates of Depression in Self-Neglecting Older Adults: A Cross-Sectional Study Examining the Role of Alcohol Abuse & Pain in Increasing Vulnerability Here is the summary from this one page brief:
Older adults with confirmed self-neglect report high rates of depressive symptoms. It has been estimated that between 50-62% of older adults with confirmed self-neglect suffer from at least sub-clinical levels of depressive symptomatology. Depressive symptoms in this population have been linked to untreated medical conditions. Further study is needed to understand the association between elder self-neglect and depressive symptoms, including studies determining potential correlates of depression in this population. Identifying such correlates could inform clinical social work and other mental health approaches for reducing depressive symptoms and self-neglect behaviors in this population. The cur-rent cross-sectional study reviewed a host of self-reported cognitive, functional, demo-graphic and clinical measures and identified a positive history of alcohol abuse, low self-rated health and pain as significant correlates of depressive symptomatology in older adults with Adult Protective Services (APS) validated self-neglect. Those with a positive screen for prior alcohol abuse were approximately 3 times more likely to have at least sub-clinical depression (Geriatric Depression Scale-15 >4). Having lower self-rated health was associated with a 53% increase in the likelihood of reporting at least sub-clinical depression. Reporting pain was associated with a 37% increase in the likelihood of reporting at least sub-clinical depression. These findings did not allow for establishing a temporal direction between depression, history of alcohol abuse, low self-rated health or pain. Nevertheless, they do provide insight into possible targets for improving out-comes in elder self-neglect populations given their evidence-based associations with both depression and self-management activities including accessing healthcare and completing activities critical for safety and protection.
Tuesday, April 11, 2017
The National Center on Elder Abuse released a new research to practice brief on Decision-Making Ability and Risk of Elder Mistreatment. This is the introduction to the brief:
There are many factors relevant to decision-making ability of older people including changes in the brain and cognition and social functioning. These changes can result in decision-making impairments that affect an older person’s ability to pay bills, drive, follow recipes, adhere to medication schedules, or refuse medical treatment (Braun & Moye, 2010; IOM, 2015). Decision-making ability may fluctuate at a given point in time (Falk et al., 2014), and while an older person may lack decision-making ability in one area, they may retain it in other areas (Braun & Moye, 2010). Decision-making ability is of special concern for the field of elder mistreatment because impaired decision-making can lead to an increased risk for abuse and exploitation among older people (Spreng et al., 2016). Thus, understanding the many factors relevant to decision-making ability is imperative to reduce risk of abuse and exploitation while maintaining and promoting autonomy among older people.
The 4 page brief covers key terms, explains how cognitive aging and capacity affect decision-making, the differences between medical decisional capacity and financial capacity and risk factors for financial exploitation. This would be great to use in our classes!
Thursday, April 6, 2017
We all know that financial exploitation is a serious and significant problem in the U.S. I was interested in this article from Investment News detailing efforts that the financial services industry and others are taking to help their elder clients protect themselves from financial exploitation. Advisers taking steps to protect elderly explains although "[t]here's widespread acceptance in the financial services industry that elderly financial abuse is a growing problem, but there's no universally accepted game plan for how to respond... Many times firms' internal procedures will involve adviser education and training, and gathering third-party contact information for accounts." The article highlights the efforts of Wells Fargo Advisors which the article explains: "Wells Fargo launched an 11-member team more than two years ago within its compliance department that serves as an internal clearinghouse and case manager when advisers see a potential problem with a client. ... The unit has taken about 4,000 reports from the field, about half of which were incidences of abuse. Wells' Elder Care Initiatives often involves state adult protective services or securities regulators in the matters.:
Bank of America Merrill Lynch has also launched efforts to help protect their elder clients, according to the article. For example, one step Merrill Lynch has taken is to have "created a contact authorization form that gives advisers a trusted person to reach out to in case of suspected fraud or to obtain more information about behavioral changes linked to possible exploitation."
The article also highlights the efforts of Morgan Stanley, Charles Schwab, Edward Jones, and Fidelity Investments. As for smaller firms, they aren't lagging behind. For example, "[s]maller firms also are responding to the elder-abuse threat. For more than a year, Romano Wealth Management has had in place steps that its nine advisers follow in reporting potential abuse to the compliance officer, who then decides whether to involve adult protective services or regulators."
The article also discusses the efforts at the federal level. "The industry is starting to get protection from regulators. In February, the Securities and Exchange Commission approved a Financial Industry Regulatory Authority Inc. rule designed to curb elder abuse. It requires brokers to make “reasonable efforts” to identify a “trusted contact” for investment accounts. It also permits them to prevent the disbursement of funds from the account and to notify the contact if the broker suspects the client is an abuse victim." The article also mentions several states that have passed laws that require investment advisors to notify APS as well as state regulators if financial exploitation is suspected.
The article discusses some other efforts and provides a good picture of various efforts taking place both by legislation and industry efforts.
April 6, 2017 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, February 28, 2017
The National Center on Elder Abuse asked various types of guardians to share their experience of being a guardian and offer advice for other guardians. We are delighted to share the first of two stories. If you would like to offer your story of being a guardian, please email us at firstname.lastname@example.org.
Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?" The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.
I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.
With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition):
The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves. Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future. The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....
The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."
While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?"
My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.
February 28, 2017 in Advance Directives/End-of-Life, Consumer Information, Crimes, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Religion, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, February 26, 2017
CNN has published an investigative report on sexual assault of residents in nursing homes. Sick, dying and raped in America's nursing homes opens with these paragraphs "Some of the victims can't speak. They rely on walkers and wheelchairs to leave their beds. They have been robbed of their memories. They come to nursing homes to be cared for... Instead, they are sexually assaulted... The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them."
The report looks at a variety of issues and the failings of the system in responding to the attacks.
In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations -- or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.
The facts of the cases are hard to read but important in understanding the scope and significance of these crimes. The perpetrators were as young as teenagers or as old as the victims. Some were caregivers, others residents.
Rather than summarizing any further, just read the story. Nothing I can add here would give you the same impact.
Responses to the report from the National Consumer Voice for Quality Long Term Care and others can be accessed here.
Thursday, February 23, 2017
North Carolina Appeals Ct Declines to Recognize Pre-Death Cause of Action for Tortious Interference with Expectancy
An interesting decision addressing standing issues arising in the context of a family battle over an 87-year old parent's assets was issued by the North Carolina Court of Appeals on February 21, 2017. In Hauser v Hauser, the court nicely summarizes its own ruling (with my highlighting below):
This appeal presents the issues of whether (1) North Carolina law recognizes a cause of action for tortious interference with an expected inheritance by a potential beneficiary during the lifetime of the testator; and (2) in cases where a living parent has grounds to bring claims for constructive fraud or breach of fiduciary duty such claims may be brought instead by a child of the parent based upon her anticipated loss of an expected inheritance. [Daughter] Teresa Kay Hauser (“Plaintiff”) appeals from the trial court's 3 March 2016 order granting the motion to dismiss of [Son] Darrell S. Hauser and [Son's Wife] Robin E. Whitaker Hauser (collectively “Defendants”) as to her claims for tortious interference with an expected inheritance, constructive fraud, and breach of fiduciary duty as well as her request for an accounting. Because Plaintiff's claims for relief are not legally viable in light of the facts she has alleged, we affirm the trial court's order.
The succinct North Carolina opinion, declines to follow the logic of Harmon v. Harmon, a 1979 decision from the Maine Supreme Court, that addressed the "frontier of the expanding field" on torious interfence of with an advantageous relationship, by recognizing a "pre-death" cause of action.
Currently the North Carolina opinion is available on Westlaw at 2017 WL 672176; I'll update this post with a open access link if it becomes available.
Tuesday, February 21, 2017
The deeply disturbing medical practice history of Christopher Duntsch, who worked as a neurosurgeon in Texas until 2013, culminated in his February 2017 conviction and sentence of life in prison for his injuries to a 74-year old patient. It is relatively rare for medical "malpractice" cases to lead to criminal charges, but as detailed in news articles covering the trial, there was strong, adverse medical testimony about how Duntsch's improper surgical procedures caused a horrific outcome.
Initially accusing Duntsch of criminal acts arising in the context of surgical procedures to several of his patients, the prosecution ultimately focused the criminal trial on his 2012 spinal surgery on a single patient under Texas Penal Code Section 22.04, for "Injury to a Child, Elderly Individual, or Disabled Individual." The pertinent portion of the statute provides:
"(a) A person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act . . . causes to a . . . elderly individual . . . : (1) serious bodily injury."
The offense becomes a first degree felony, if it is proven that the conduct was "committed intentionally or knowingly." If the conduct had been "only" reckless, the offense would be a felony of the second degree.
Under the statute, an "elderly individual" is defined as a "person 65 year of age or older."
In a Washington Post article on the conviction, a Texas attorney is quoted:
“I cannot recall a physician being indicted for aggravated assault for acts committed during surgery,” Toby Shook, a Dallas defense attorney who spent 23 years working as a Dallas County prosecutor, told the magazine. “And not just Dallas County — I don’t recall hearing about it anywhere.”
Friday, February 17, 2017
As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward. Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact. A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:
"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest."
In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.
"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."
The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away. Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice."
I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney." Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?
February 17, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Tuesday, February 14, 2017
I have had several law students take advantage of summer internships available through the David Berg Center for Law and Aging in New York City and they always report it was a great experience. The window is now open for applications for summer 2017. Here are the details:
The David Berg Center for Law and Aging is seeking select students for its Summer 2017 internship program. The David Berg Center for Law and Aging focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation. Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale. Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse. Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will be exposed to legal practice in New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York State Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse. Past issues have included questions surrounding legal capacity, guardianship, powers of attorney, Medicaid eligibility, copyright, and right to privacy. The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters. The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. Dormitory style affordable housing at the College of Mount Saint Vincent is available.
Interested students should send a resume, cover letter and writing sample to Deirdre Lok. Her email address is available on the Center's website here.
Monday, February 13, 2017
Late last month the Congressional Research Service published the following: The Elder Justice Act: Background and Issues for Congress. Here is an excerpt from the executive summary
Elder abuse is a complex issue that often requires a multifaceted policy response that combines public health interventions, social services programs, and criminal law enforcement for abusive behavior. To address this complexity, the Elder Justice Act was enacted on March 23, 2010 as part of the Patient Protection and Affordable Care Act (ACA, P.L. 111-148, as amended). The act attempt s to provide a coordinated federal response by emphasizing various public health and social service approaches to the prevention, detection, and treatment of elder abuse. The Elder Justice Act also represents Congress’s first attempt at comprehensive legislation to address abuse, neglect, and exploitation of the elderly at the federal level.
To date, most activities and programs authorized under the Elder Justice Act have not received federal funding through the annual appropriations process. For the first time, Congress appropriated $4 million for a new Elder Justice Initiative in FY2015 and $8 million in FY2016. However, the authorizations of appropriations for most provisions under the act expired on September 30, 2014. Despite the lack of discretionary appropriations prior to FY2015, some elder justice activities have received funding from mandatory funding appropriated through the ACA Prevention and Public Health Fund (PPHF). As a result of this limited federal funding, the federal government has not substantially developed and expanded its role in addressing the prevention, detection, and treatment of elder abuse.
For FY2012, the Secretary of the Department of Health and Human Services (HHS) transferred $6.0 million to the Administration for Community Living (ACL) from the PPHF for new grants to states and tribes to test elder abuse prevention strategies. Funded projects included using forensic accountants to prevent elder financial exploitation, increasing medication adherence to prevent elder self-neglect, and developing screening tools to identify elder abuse. For FY2013, $2.0 million was transferred to ACL from the PPHF for elder justice activities, which funded development of the National Adult Protective Services Data Reporting System Project. No PPHF funds were transferred to ACL for elder justice activities for FY2014 or subsequent fiscal years.
For FY2017, the President’s budget request included $10.0 million in discretionary funding for Elder Justice/Adult Protective Services (APS) that would be used to fund APS, research, and evaluation activities. The 2017 budget request did not specify an intended transfer of funding from the PPHF for elder justice activities. For FY2017, the Senate Appropriations Committee recommended $10.0 million for the Elder Justice Initiative in its FY2017 Departments of Labor, Health and Human Services, and Education, and Related Agencies (LHHS) appropriations bill. The House Appropriations Committee recommended $8.0 million in its FY2017 LHHS appropriations bill. Neither House nor Senate floor consideration of the bill occurred in the 114th Congress. Since the start of the fiscal year (October 1, 2016), funding for LHHS programs and activities has been provided by two continuing resolutions (CR; P.L. 114-223 and P.L. 114-254). The second FY2017 CR provides continuing appropriations for LHHS appropriations through April 28, 2017, or until full-year appropriations are enacted.
The report offers some observations for Congress as well as some concluding thoughts:
The Elder Justice Act represents one set of policies that exist in the broader context of domestic social policy to address the complex issue that is elder abuse. That is, as a federal legislative response, the Elder Justice Act may best serve as a catalyst for further federal coordination and action that can bring about greater public awareness and attention to the needs of a growing, and potentially vulnerable, aging population. According to GAO, the Elder Justice Act "provides a vehicle for setting national priorities and establishing a comprehensive, multidisciplinary elder justice system in this country."44 Such a response touches on a range of domestic policy programs and issues that are not specific to one congressional committee’s jurisdiction or area of expertise. Furthermore, congressional oversight into federal administration, implementation, and related activities must rely on different committees of jurisdiction as well as the experience of select committees such as the Senate Special Committee on Aging....
Sunday, January 22, 2017
The National Guardianship Association, NGA, released updated Standards of Practice for Agencies and Programs Providing Guardianship Services. The standards are free and can be downloaded here. Here is some information about the standards taken from an email announcing their release:
NGA's purpose in this document is to provide guidance for programs striving to provide quality guardianship services. While aspirational, the standards convey good business practice that agencies and states should consider adopting into policy or law.
NGA has defined Standards of Practice for the day-to-day provision of guardianship services. Those standards apply to all guardians whether professional guardians, volunteer guardians or family members. This document defines additional NGA standards for acceptable business practice and program design for non-family guardians who are developing or operating agencies or programs providing professional guardianship services.
Sunday, January 15, 2017
On January 26, 2017, the Elder Justice Initiative will be hosting a webinar to highlight resources and information available on the Elder Justice Website.
This webinar will be hosted by Susan Lynch and Sid Stahl and will introduce you to the Department of Justice’s Elder Justice Website and will help you to navigate the many tools and resources available on DOJ’s website for elder abuse prosecutors, law enforcement, victim advocates, victims, families, caregivers, and elder abuse researchers. These tools can help you find assistance when in need, get involved in combatting elder abuse and financial exploitation, and educate you on elder justice programs operating at the federal, state, and local levels.
Registration opens the week before the webinar.
Thursday, January 12, 2017
Should Home Care Providers Be Permitted to Seek Broad Waivers of Liability from Elderly Clients? (And if so, are there clear standards for a knowing waiver?}
Recently an attorney wrote to me about an elderly client who had been victimized by a home care worker hired through an agency; the allegations included physical abuse, intimidation, identity theft, failure to provide care, theft of personal possessions and false imprisonment. Not too surprisingly, the specific worker was long gone once the harm was discovered by non-resident family members. Significantly, the family also learned that the mother had signed the agency's standard contract withtwo pages of single-spaced type that covered everything from hours to wages, and which included a numbered paragraph purporting to grant a broad waiver of the agency's liability for actions of the individuals sent to the home of the elderly client. Key language provided:
"CLIENT and/or CLIENT's agent/responsible party agrees on behalf of CLIENT, CLIENT's agent/responsible party, beneficiaries, heirs, and/or family/household members to release [agency], owner, officers, directors, agents and employees, office, office directors, office employees, and Caregiver from any and all liability, potential or real, for any injury, claim, damage, or loss, including attorney's fees, incurred in connection with the performance of this agreement and all services, incurred in connection with the performance of this agreement and all services performed by Caregiver for the CLIENT, including but no limited to assisting CLIENT with his/her medications and providing transportation to Client or any member of CLIENT's family/household, except for gross negligence...."
The attorney asked about any state regulatory language that would limit liability waivers or require, at a minimum, bold faced type or large type for such attempted waivers when used with elderly or disabled clients. Those receiving home care may be uniquely vulnerable to unwitnessed abuse, and also less likely to report abuse because of the fear of the "worse" alternative, a nursing home. In the state in question, regulations require certain disclosures to be made in a form "easily read and understood," but the regulations don't specifically address (nor prohibit) waivers of the company's liability. See e.g. PA Code Section 611.57.
What about in your state? Is there relevant regulation? Alternatively, is there a "best" (or at least better) practice in the home care industry when seeking contractual waivers of liability? The issue reminds me of an article written in the mid-1990s by Charlie Sabbatino discussing the one-sided nature of nursing home contracts in the absence of careful regulation protecting patient rights. He wrote:
Broadly worded waivers of liability for personal injury are likely to be unenforceable and void as a matter of public policy in most states. Residents are most commonly asked to consent to absolute waivers for injury caused by other patients or by independent contractors in the facility, or for injury occurring outside of the facility, such as on a field trip. Federal and state nursing home laws have not squarely addressed personal injury waivers. even though the whole thrust of the regulatory framework is expressly intended to set standards for the protection of residents' health, safety, and welfare.
And the subtitle of the article on Nursing Home Contracts is "Undermining Rights the Older Fashioned Way."
January 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 11, 2017
I'm much overdue in writing about a terrific, recent workshop at Arizona State University's Sandra Day O'Connor College of Law on "The Aging Brain." For me it was an ideal gathering of disciplines, including experts in neurology, psychology, health care (including palliative care and self-directed aid-in-dying), the judiciary, and both practitioners and academics in law (not limited to elder law). Even more exciting, that full day workshop (11/18/15) will lead into a public conference, planned for fall 2017.
Key workshop moments included:
- Preview of a potentially ground-breaking study of early-onset Alzheimer's Disease (AD) centered on a family cluster in the country of Columbia with a genetic marker for the disease and a high incidence of onset. By "early onset," we're talking family members in their 40s. The hope is that by studying the bio-markers in this family, that not only early onset but later-in-life onset will be better understood. Eric Reiman, with professional affiliations with Banner Health, Arizona State University and University of Arizona, spoke at the workshop, and, as it turned out, he was also featured on a CBS 60 Minutes program aired a short time later about the family-based study. Here's a link to the CBS transcript and video for the 60 Minutes program on "The Alzheimer's Laboratory."
- Thoughtful discussion of the ethical, legal and social implications of dementia, including the fact that self-directed aid-in-dying is not lawful for individuals with cognitive impairment. Hank Greely from Stanford University Law and Medical Schools, and Professor Betsy Grey for ASU's Sandra Day O'Connor College of Law led discussions on key issues. As biomarkers linked to AD are identified, would "you" want to know the outcome of personal testing? Would knowing you have a genetic link to AD change your life before onset?
- Overview of recent developments in "healthy" brain aging and so-called "anti-aging" treatments or medications, with important questions raised about whether there is respected science behind the latest announcement of "breakthroughs." Cynthia Stonnington from the Mayo Clinic and Gary Marchant from ASU talked about the science (or lack thereof), and Gary raised provocative points about the role of the FDA in drug approvals, tracking histories for so-called off label uses for drugs such as metformin and rapamycin.
I very much appreciate the opportunity to participate in this program, with special thanks to Betsy Grey and federal Judge Roslyn Silver for making this possible. I've also enjoyed serving as occasional guest in Judge Silver's two-semester Law and Science workshop with ASU law students. Thank you! For more on the Aging Brain programming at ASU, see here.
January 11, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Science | Permalink | Comments (0)
Tuesday, January 10, 2017
The American Bar Association Senior Lawyers Division is offering a free webinar on January 19 at noon on scams, as part of its series on preventing elder abuse. The webinar will include panelists from the Consumer Financial Protection Bureau, DOJ and the Harry & Jeanette Weinberg Center for Elder Abuse Prevention. Topics to be covered include the frequency of elder abuse, trends in scams, scam prevention, what to do if a victim, and civil remedies. Click here to register.
Sunday, December 25, 2016
The National Center for State Courts, in conjunction with the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) released its Strategic Action Plan 2016 Adult Guardianship Initiative which was adopted on December 1, 2016. According to the report "[t]he mission of the Adult Guardianship Initiative is to improve state court responses to guardianship and conservatorship matters. This Initiative encourages the use of less restrictive alternatives, the prioritization of the protected person’s individual rights, active court monitoring and oversight, the modernization of processes, and the restoration of rights."
The initiative has 4 goals:
Develop and maintain a partnership of key stakeholders ...
Prioritize the protection and enhancement of individual rights ...
Promote modernization and transparency in the guardianship process ...
Enhance guardianship/conservatorship court processes and oversight ...
The initiative also lists several concept projects: (1) Funding and Implementing a Guardianship Court Improvement Program; (2) Conservatorship/Guardianship Accountability Project: Building a National Resource that uses Technology and Analytics to Modernize the Process; (3) National Summit for Courts on Improving Adult Guardianship Practices; (4) Establishing Judicial Response Protocols to Address Guardianship Abuse, Neglect and Exploitation; (5)Developing a Mentor Guardianship Court Program; and (6) Building a Research Portfolio and Developing Court Performance Management Systems.
Visit the Center for Elders and the Courts for more information.
December 25, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, December 8, 2016
The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature. There are two specific provisions in the Cures Act that bear mention:
The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.
Section 5007 provides:
SEC. 5007. Fairness in Medicaid supplemental needs trusts.
(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting “the individual,” after “for the benefit of such individual by”.
(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.
Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"
“The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:
“(1) Notice of the proposed adverse determination and the supporting evidence.
“(2) An opportunity to request a hearing.
“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.
“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.
The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."
The President is expected to sign the bill soon. More to follow.
December 8, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Veterans | Permalink | Comments (0)