Wednesday, October 23, 2013
Following last week's USA Today article exposing thefts by nursing home employees from resident trust accounts, Senator Bill Nelson, chair of the U.S. Senate Special Committee on Aging, has called upon the Inspector General to investigate management and oversight practices and to reommend corrective action by the Centers for Medicare and Medicaid (CMS). CMS has oversight authority over nursing homes.
In a letter dated October 21, Senator Nelson targets the absence of standard protocals for safeguarding such accounts:
"Widespread negligent oversight allowed some of these theft and embezzlements schemes to go on undetected for years, and in some instances the losses totaled more than $100,000. Several of these trust fund culprits were caught merely by accident or due to the suspicions of a co-worker, and not by systematic financial auditing or tight management controls."
If, as the saying goes, no good deed goes unpunished, no bad deed by a nursing home goes uninvestigated by Congress. Stay tuned, but don't hold your breath.
Sunday, October 20, 2013
Following up on her story of filal support in China, AP Writer Kristen Gelineau's new article on elder abuse identifies several factors that can lead to tragedy: an elder's frailty, a family's inability to provide appropriate care (whether because of emotional unsuitability or financial pressures, or both), and isolation. The latest account comes from Kristen's own country, Australia, "a developed, wealthy nation considered progressive in its treatment of seniors."
Eighty-eight year old Cynthia lived with a daughter, Marguerite, who received a caregiver's benefit of about $500 every two weeks. That money was her mother's one last tie to the outside world, but it wasn't enough.
"Once the payments started, the government welfare agency, Centrelink, never asked for further medical updates on Cynthia, Marguerite said.
Cynthia also vanished from the health care system. Medicare records show that until 2003, she regularly saw doctors and took prescription medications; Marguerite said the doctors' visits were covered by government health care. But after 2003, Cynthia never saw another doctor, never filled another prescription.
She simply slipped through the cracks, showing how the protection of social networks can evaporate with age. A doctor or teacher may notice the bruises on a child. But almost nobody sees the bruises on a secluded older person — and those who do may chalk them up to aging.
Marguerite's explanation, years later, for why she stopped taking her mother to the doctor: 'Well, she didn't say she was ill...She seemed happy.'"
As Kristen's reporting makes clear, what happens to Cynthia could happen in any country that turns its eyes away from the potential for suffering by isolated elders. Make yourself read "Neglected Old Australian Woman Suffers Brutal Fate."
Thursday, October 17, 2013
I have to admit that I pass over a fair number of opportunities to write in this Blog about problems in nursing homes. Experience tells me that nursing homes are on the front lines of the care battle, are heavily regulated (for good reasons), and are trying to do a tough job with ever decreasing resources. There are problems, but the problems also exist with other forms of facility-based care that don't receive the same attention by regulators and the media.
But today's USA Today's article on "Thefts From Nursing Home Trust Funds Target the Elderly," addresses a form of abuse that is particularly troublesome, in part because it should be darn easy to prevent with proper accounting safeguards for client funds. Here's the opening to the story:
"The administrator at the Vicksburg Convalescent Center knew something was wrong when she saw the receipt: a $90 debit from a resident's trust fund account for a pair of designer jeans.
Of all the elderly residents at the 100-bed nursing home, Amy Brown figured, this one was especially unlikely to spend his savings on pricey pants.
Both of his legs had been amputated."
As Kim Dayton reminds us in her separate post, "October is Residents' Rights Month." Of course, abuse is wrong on any day of the year.
Wednesday, October 16, 2013
community-based services, better balance services from institutional to non-institutional settings, and promote affordable, accessible housing.”
Tuesday, October 8, 2013
Following up on Becky's post--this is old news, but it is Old News Worth Repeating: the SAFE Minnesota phone/Iphone app
During their spring 2013 semester in my Elder Justice and Policy Keystone course, students wrote an elder abuse application called “SAFE MN.” The app is intended for use by law enforcement officials, first responders, mandated reporters, and laypersons who encounter possible abuse or exploitation of a vulnerable adult or older person. The app provides information about the signs and symptoms of abuse, hotline numbers, and other resources that will help identify abuse and abusers, allow for reporting and, in appropriate cases, facilitate prosecution. Keystone students compiled and organized the app’s substantive content, and Chris , who was a programmer prior to law school and has written a number of apps, wrote the code.
Although the app was intended for use in Minnesota, much of its content is generic. The app is free, and available for download both from Google Play (Android) and from Apple.
Desiree Toldt, who will graduate from Mitchell in May 2014, also wrote a paper that serves as a step-by-step guide to others interested in replicating the app in their own jurisdictions. To obtain a copy of the paper, contact me (use email link in my bio, below).
Kudos to these students for their outstanding work!
The Center for Law, Brain and Behavior (CLBB) at Massachusetts General Hospital (MGH) has a fascinating sounding project underway: using neuroscience to develop tools to evaluate human susceptibility to undue influence. Here's a brief description from a recent MGH newsletter:
"A second CLBB project focuses on older adults with cognitive impairment who are at heightened vulnerability to coercion by opportunists hoping to control their decisions, particularly concerning financial matters. The goal of the study is to devise and test a psychometric instrument to measure susceptibility to undue influence that can be used in proceedings about guardianship, testamentary capacity and informed consent.'The development of this tool will make an immediate contribution to the protection of adults with mild to severe intellectual impairments,' says Dr. Price."
Hat tip to Ross Schmucki, Esq. of Media, Pennsylvania for sharing this news.
Wednesday, October 2, 2013
Designing Laws re Protection of Older Persons from Abuse (and writing on a "clean slate" in 2013): What Would You Include?
Recently I have the privilege of joining an international, interdisciplinary team of academics and practitioners working on new legislation for protection of adults, especially older adults, from abuse, neglect and financial exploitation. I hope to report more about our work in the future.
At our first meeting, I was interested to hear the commonality of themes between the U.S. and other countries involved in the research. Aside from the basics, which include definition of terms and scope of duties to report, two themes struck me as persistent and tough, despite each country's efforts to tackle the problems:
- First, whether initial reports of suspected abuse should go to a "civil" investigatory agency, or also to traditional law enforcement (police, garda, gendarmes, sheriffs, etc.).
- Second, the challenges of determining capacity of the possible victim to consent to the investigation (or to accept, for lack of a better word, the consequences of suspected abuse).
Perhaps you have individual concerns about the effectiveness (or ineffectiveness?) of adult protective service laws in your jurisdiction.
We'd love to receive your comments.
Friday, August 30, 2013
Missouri Circuit Court Judge Karl A.W. DeMarce offers thoughtful comments from the bench on potential conflicts of interest for family members, especially spouses, in handling responsibilities as court-appointed conservators or guardians. Judge DeMarce stresses the lawyer's role in advising conservators on appropriate financial transactions, including transfers of assets:
"No conservator-spouse should have to face unnecessary legal complications and burdens – in addition to the family tragedy of having to care for a loved one no longer capable of managing his own affairs – because her attorney failed to advise her of the legal obligations and potential conflicts of interest involved. No attorney wants to learn that a client’s world has been unnecessarily turned upside down because of his or her failure to provide timely and complete legal advice. In the potential legal minefield of spousal conservatorship, the value of frank, timely, and comprehensive legal advice cannot be overestimated."
Further, the judge points to the lawyer's role in explaining the validity of transactions to the court:
"Counsel can play a valuable role not only in advising the conservator-spouse, but also in explaining to the probate division why certain types of expenses beneficial to the conservator-spouse, which would ordinarily be seen as being in violation of fiduciary duties, may be in the protectee’s best interests due to MO HealthNet program requirements."
Read the full article, "The World Turned Upside Down: Challenges Facing the Conservator-Spouse," published in the August 2013 issue of the Journal of the Missouri Bar.
Friday, August 23, 2013
While visiting family recently, I wound up answering the telephone several times and realized how often my parents were receiving calls from telemarketers. The callers were exceptionally clever, obviously working off lists that suggested the age of the owner of the telephone number. The calls were seductive, pitching "permanent" lowering of utility bills, free home inspections, or unnecessary renewals of magazine "subscriptions." I realized how easy it was to listen just long enough to be sucked into one or another "hook."
Older adults remain prime targets for telemarketers because they still have "land lines," tend to be less likely to call or use the internet to register for "Do Not Call" protection, and because they probably spend more time at home. During the years of working with Penn State's Elder Protection Clinic, we had several cases of major financial exploitation that started with telephone scams. Often the son or daughter said, "I can't believe my frugal mom would fall for such a thing." But the scammers know how to work the emotions of a frugal elder and prey upon any diminishment of critical thinking skills or judgment (sometimes a subtle, early but still unrealized sign of cognitive decline).
Perhaps that's where attorneys can help families protect their older family members. As part of an Elder Law attorney's practice, at an early meeting, we can ask, "have you (or your parent) registered for 'Do Not Call?'" And we can have the information on how to register readily available.
Oh, and contrary to one of the scammer's arguments, there is no "expiration" date for telephone numbers on the Do Not Call Registry!
Monday, August 19, 2013
Pennsylvania has become the hotbed of "filial support law" enforcement suits, with health and long-term care facilities leading the charge.
In 2012, in Health Care & Retirement Corp.(HCR) v. Pittas, an intermediate court of appeals held an adult son liable for more than $92k in nursing home costs incurred by his mother under Pennsylvania's filial support law, 23 Pa.C.S.A. Section 4603. For a brief video analysis of the Pittas case and Pennsylvania law, see here.
The Pittas case was controversial in part because the court did not point to any fault on the part of the son as justification for enforcement. For example, there was no discussion of "improper" transfers or theft of the parent's assets, facts that had sometimes been the background of previous cases.
The Pennsylvania trend certainly has not gone unnoticed by the media or courts and legislatures in other states. I receive regular calls from attorneys and parties on all sides of the "filial support" enforcement controversies asking me to compare their state's (or even foreign countries') laws to Pennsylvania. For more on comparative analysis of filial support enforcement issues, see my recent Elder Law Journal (University of Illinois School of Law) article here.
Perhaps we are now seeing the pendulum swing the other way, rejecting modern enforcement attempts. One of the latest rulings on filial support law occurred in Montana. In a July 2013 decision, the trial court granted summary judgment in favor of a son on a nursing home's claim of close to $15k incurred for his mother's care. The court declined to enforce a cause of action for filial support, citing a bar on "third-party guarantees" under federal Medicare and Medicaid law, and thus suggesting enforcement of the state's separate filial law was preempted. For a scanned copy of the decision in Heritage Place, Inc. v. Jarrell, Case No. DV-11-430(D), in the 11th Judicial District Court, Flathead County, Montana, see the link available through ElderLawAnswers.
Perhaps even more significant is recent action by the New Hampshire legislature, changing state law to eliminate a statutory basis for an adult child to be held liable to support his or her parents. See 2013 New Hampshire Laws Ch. 212 (H.B. 481), approved July 10, 2013 and effective on January 1, 2014, amending N.H. Rev. Stat. Sections 167.2 and 546.A:2.
Will Pennsylvania legislators take similar action? For an answer to that question, follow Pennsylvania Senate Bill 70 and House Bill 224, for the 2013-2014 legislative session. Both the nursing home industry and the Pennsylvania Department of Public Welfare have opposed repeal efforts in recent years, while the Pennsylvania Bar Association has supported repeal.
Tuesday, August 13, 2013
The 66th Annual Meeting for the Gerontological Society of America (GSA) takes place in New Orleans on November 20-24, 2013. As lawyers and law professors are aware, "Elder Law" is an inherently multi-disciplinary field. The GSA meeting is an opportunity to discover and share the latest in interdisciplinary research on medicine, clinical care, basic science, social science, behavioral science, and public policy for issues connected to aging. The meeting attracts an international audience, with more than 4,000 attendees, and some 400 substantive sessions.
The theme for this year's meeting is "Optimal Aging through Research," and there is a special workshop on the topic of family caregiving for persons with dementia, which should be particularly interesting for those seeking the latest in evidentiary bases for state or federal legislation to support caregivers. Further, the deadline for "late-breaking" abstracts for poster submissions is September 15.
Full details on the annual meeting are available at GSA's website.
Tuesday, August 14, 2012
On June 15, 2012, World Elder Abuse Awareness Day, Director Cordray announced a Request for Information (RFI) to learn more from the public about the growing issue of financial exploitation of older Americans and best practices for elder financial management. A recent study suggests elder financial abuse cost seniors more than $2.9 billion in 2010, a 12 percent increase from 2008.
The goals of the RFI are:
- To help us understand the senior financial advisor market so we can improve protections for older Americans.
- To help make the work of the office for Older Americans more effective.
Read and respond to the RFI:
The RFI poses the following questions:
- How seniors can best determine the legitimacy of the credentials of financial planners and advisors.
- What financial education, counseling, or management programs are tailored to the needs of older Americans, their families, and their caregivers.
- Asks for information about power of attorney and guardian abuse, affinity frauds, and the exploitation of older veterans.
The RFI closes Monday, August 20th. We want your voice to be part of the record.
The information you provide us will help us better understand the issues of elder financial abuse and other forms of exploitation.
Assistant Director for Older Americans
Friday, June 29, 2012
The Consumer Financial Protection Bureau's Request for Information on Senior Financial Exploitation (RFI) is now in the Federal Register. The request seeks information on elder financial abuse and exploitation as well as certifications or designations of financial advisors who serve seniors. The Bureau is seeking as robust a response as possible. If you have regular membership calls or email communications (such as a listserv) and if you think it is appropriate to let your membership know about the RFI, please encourage comment submissions. There is a sixty (calendar) day window for responses. The last day for responses is August 17th.
Here is the link to the Request https://www.federalregister.gov/articles/2012/06/19/2012-14854/request-for-information-regarding-senior-financial-exploitation
This is a unique opportunity for advocates and practitioners to let the CFPB know what they are seeing and experiencing personally and professionally on the issue of elder financial abuse and exploitation. In addition to questions about senior financial advisor certifications and advice, there are questions concerning financial literacy efforts, power of attorney and guardian abuse, affinity frauds and financial exploitation of older veterans.
Wednesday, June 13, 2012
HHS Secretary Kathleen Sebelius:
"Our senior citizens have contributed so much to our nation. We owe it to them to make sure they can live out their later years in peace, comfort and safety.
That starts with doing a better job of protecting them from physical, mental and financial abuse. Each year, an estimated one in ten older Americans experiences some kind of abuse. Sometimes, it's an elderly woman left tied in her chair while her "caregiver" goes out. Sometimes, it's an aging parent who's bullied by a violent child. Other times, it's an older couple intimidated into turning over their life's savings to a crooked financial adviser.
This abuse is distressingly common. Yet it often goes undiscussed, and only an estimated one in 24 cases is ever reported to authorities.
As our population ages, we need a new commitment to fighting elder abuse.
That starts with making it part of the national conversation. Elder abuse has been able to flourish because witnesses too often fail to step in. Sometimes we simply don't recognize abuse, like when we assume an elderly friend gave his money away voluntarily. In other cases, we know what's happening is wrong but hesitate to speak out."
Wednesday, May 16, 2012
The National Survey on Abuse of People with Disabilities was released on May 1, 2012. In just over two weeks, 2,300 people have taken the survey.
To Take the Survey Now
The purpose of the survey is to seek input from the public, especially from persons with disabilities or those who interact with them, such as family members, caregivers, service providers, and advocates. Our intention is not to create a scientific research project, but rather a robust survey, the results of which may be used for research, education, and advocacy.
The survey, which takes just a few minutes to complete, gathers information about actual incidents of abuse as well as attitudes regarding the adequacy and effectiveness, or not, of official responses to such victimization.
The results will be shared with those who shape public policy and fund abuse-response programs (legislators), those who investigate and prosecute complaints of abuse (law enforcement), those who promote more effective protection and response systems (nonprofit advocacy groups), and most importantly, people with disabilities and their families.
After you take the survey, please forward it to your friends, family members, and colleagues. Mention it in your newsletter. Share it with your groups or listserv.
sexual, and emotional abuse of people with developmental or intellectual disabilities.
Our mission is to identify ways to reduce the risk of abuse, to promote healing for victims, and to seek justice for those who have been victimized.
The areas in which we take action include: public awareness, education and training, policy development, law enforcement, and professional consulting.
Missouri's elder abuse law could soon be expanded to protect older citizens from financial exploitation. The House voted 147-2 in favor of legislation that makes it a crime for those with authority over an elderly person to take advantage of that person's state of mind for financial gain. The provision would apply to people who have guardianship, power of attorney or some other financial management role for seniors. If someone steals money from an elderly person that had been intended to cover nursing home expenses, a judge could order that the money be paid to the home. Supporters say some senior citizens need more protection because of their age and health. The measure has already been approved by the Senate and now goes to Gov. Jay Nixon.
Tuesday, March 27, 2012
Abuse in Later Life: Responses, Resources, Collaborations
Join us for a Webinar on April 11
Space is limited.
Reserve your Webinar seat now at:
In this session we provide an introduction for aging advocates to the universe of domestic violence and sexual assault services and resources available for older victims, including screening, safety planning, legal and social service responses, and community collaborations.
1. Understand abuse in later life as a subset of elder abuse
2. Learn how to effectively screen and safety plan with every client
3. Recognize services available to victims of domestic violence and sexual assault in later life
4. Identify potentially new community partners for collaboration and referral
- Rebecca Henry, Deputy Chief Counsel, ABA Commission on Domestic & Sexual Violence
- Bonnie Brandl, Director of the National Clearinghouse on Abuse in Later Life (NCALL), a project of the Wisconsin Coalition Against Domestic Violence (WCADV).
Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging. This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.
There is no charge for this webinar.
All time listings are in Eastern Standard Time.
If you have any questions email email@example.com
Wednesday, March 14, 2012
The Consumer Financial Protection Bureau (CFPB), Office for the Financial Protection of Older Americans hosts March 16 teleconference
The Consumer Financial Protection Bureau (CFPB), Office for the Financial Protection of Older Americans invites you to join us for a teleconference on March 16, 2012 from 11:30 AM to 1:00 PM PST.
Hubert H. ("Skip") Humphrey, Assistant Director of the Office for Older Americans, Jenefer Duane, Older Americans Senior Program Analyst, and Naomi Karp, Policy Analyst will provide an overview of the responsibilities included under the statute for the Office for Older Americans and an update on the progress towards these goals. Edwin Chow, CFPB Regional Director, will provide an overview of the CFPB's Supervision and Examination activities.
We will have ample time for questions and suggestions on how the Office for Older Americans can "Lead, Serve and Innovate" in collaboration with community stakeholders.
Participant access information:
Conference number: 7129273
To register for this event:
1. Go to the URL listed above and choose Web RSVP under Join Events.
2. Enter the conference number and passcode.
3. Provide your information for the event leader and then click submit.
RSVP's are not required, but will expedite your participation in the conference call.
Please join us! If you have questions, please contact Jenefer Duane at Jenefer.firstname.lastname@example.org
Friday, February 17, 2012
The NGA Review Course for the national certification exam is available in March as a webinar, offering you a group study experience for the examination right from your own desk using a computer and a toll free phone number.
The deadline to register is February 28.
The webinar study course is scheduled for four successive Tuesdays beginning March 6. All of the one-hour sessions begin at 1:00 pm Eastern Standard Time (Noon, Central; 11:00 am, Mountain, and 10:00 am, Pacific). These virtual review courses are also tentatively planned for late spring and mid-summer. Participants can register for all four sessions or just those where brush-up training is desired. However, your registration for March must be received by February 28.
NGA Also Has Guides for Independent Study
If you want to prepare for the national certification exam without taking a Review Course or if you plan to register for a Review Course at a later time, you can also purchase a study guide without registering right now for the course. State-specific study guides are also available for California and Florida. NGA does not offer a state-specific study guide for any other state.
Important Reminder: NGA does not administer the Certification Exams. The Center for Guardianship Certification (CGC), which conducts exams, is an entirely separate organization with a different staff and offices located in a different city than NGA. Registering for NGA's Review Course or ordering study materials does not automatically register you for the exam and vice versa.
Wednesday, February 15, 2012
Consumer Voice hosts two-part Webinar Series on Guardianship, Financial Powers of Attorney, and Advance Care Planning
Join Us for a Two-Part Webinar Series on
Guardianship, Financial Powers of Attorney, and Advance Care Planning
The National Consumer Voice for Quality Long-Term Care (the Consumer Voice) is hosting a two-part webinar series designed to give advocates, ombudsmen, consumers, families, providers and others a deeper understanding of guardianships, financial powers of attorney and advance care planning. Participants will gain a basic understanding of these three important legal protections and how best to work with and support an individual who has a guardian or agent. Suggestions and approaches for handling challenging situations will also be covered.
The series is designed for both beginners and those with advanced knowledge!
Series Topics and Dates:
- Guardianship, Financial Powers of Attorney and Advance Care Planning: What You Need to Know (Beginner/Refresher) - March 13, 2012; 3:00 - 4:30pm ET
Three national experts from the ABA Commission on Law and Aging will provide an overview of guardianship, financial powers of attorney, and advance care planning. For each of these topics, speakers will present the fundamentals, explain the individual’s rights, and discuss the roles and responsibilities of guardians, agents, nursing home or assisted living providers and staff, ombudsmen, and consumer advocates.
- Guardianship, Financial Powers of Attorney and Advance Care Planning: Taking it to the Next Level (Advanced) - April 4, 2012; 3:00 - 4:30pm ET
What do you do when a nursing home resident with unclear decision-making capacity disagrees with her daughter who is the agent? What happens when a guardian wants to make a decision that the resident adamantly opposes? Members of a panel representing the legal community, advocacy and providers will discuss how to approach and resolve these and other difficult situations.
- Consumer Advocates: $35 per session or $65 for the series
- Providers: $99 per session or $175 for the series
- Recording (mp3 by e-mail): $15 per session or $25 for the series