Thursday, March 5, 2015

ABA Webinars on Domestc Asset Protection Trust Planning

Yesterday I wrote about the Utah Supreme Court decision rejecting application of Nevada law to determine the nature of an asset protection trust.   Would the same result occur if the claimant was an "ordinary" creditor, rather than a spouse and co-settlor? 

One way to get in on the discussion would be the ABA's "Jurisdiction Selection Series" on "Domestic Asset Protection Trusts."  And as luck would have it, the next in the series of 5 webinar sessions covers Arizona, Maryland, New Hampshire --- and Nevada law.  The program is Tuesday, April 14, 2015, and will be followed by a session on June 9, 2015 covering Hawaii, Kentucky, South Dakota and Utah.  Here are some of the topics to be addressed:

  • What is an inter vivos QTIP trust and how can it help my clients?
  • Will domestic self-settled asset protection trusts benefit my clients?
  • Do the costs of creating a trust in one state for creditor protection or taxation benefits really outweigh the creation of such a trust in another?
  • Is the trust really protected from creditors?
  • Can the trust be used to avoid the income tax in the grantor's state of residence?
  • Can a same sex couple benefit from the use of these trusts?
  • Is using an offshore trust better?

A number of states have laws governing "full blown self-settled asset protection trusts" or permit some form of similar trust.  Here is the link to the details about registration, cost and timing for all of the ABA sessions.

Hat Tip to Penn State Law Professor James Puckett for sharing the timely info on this series.

March 5, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Utah Supreme Court Rejects Attempt to Specify Nevada Law as Controlling "Irrevocable" Trust

In Dahl v. Dahl, the Utah Supreme Court was asked to examine the effect of a choice-of-law clause in a trust that purported to be "irrevocable." The clause provided:

"Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada. The administration of each Trust shall be governed by the laws of the state in which the Trust is being administered."

The first sentence of the provision was significant, because the trust granted husband-settlor continuing rights of control, even as he argued the "irrevocable" label was valid, prohibiting wife from claiming any marital interest in assets used to fund the trust.

Continue reading

March 4, 2015 in Books, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

How Many "Wrongs" in This Estate Dispute...?

The New York Times Ethicists take on an estate dispute.  Here's how it starts:

In order to decrease his net worth before beginning divorce proceedings, my brother invested $600,000 in an apartment in my father’s name. Years later, he had our mother co-sign a business loan. When the business failed, my mother was sued for $3 million she didn’t have. After she died of cancer, my father fought the suit for many years. At 93, he settled for a $1.1 million loss. Unable to live his accustomed lifestyle, he approached my brother with the expectation that my brother would supplement his income. When my brother refused, my father sold the apartment and kept the $600,000.

 

When my father died, he left his estate to be split between my two adult sons.... 

Perhaps you have already guessed that "brother" is asserting a claim against the estate to recover "his" $600,000.

For the full analysis, listen to the podcast or read the shortened discussion here

March 4, 2015 in Estates and Trusts, Ethical Issues, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

What Are the Dangers of Treating Legal Practice as a Commodity?

Heidi Rai Stewart, an attorney who concentrates her practice in "estate planning, estate and trust administration, special needs planning, elder law and Orphan's Court matters," has an interesting article in the March-April issue of The Pennsylvania Lawyer.  

In "A Hit Between the Eyes - The Danger of Treating Legal Practice as a Commodity," Ms. Stewart takes on the hot topic of nontraditional providers of legal documents or legal advice, including lower-cost sources such as LegalZoom's partnership with Sam's Club or Avvo Advisor, an "on-demand service providing legal advice at fixed rates." 

Ms. Stewart makes several points, including:

  • "A fill-in-the-blank document program simply cannot address the possible eventualities that a skilled attorney will bring to a client's attention.  Although attorneys use forms, a skilled lawyer does not simply fill in blanks."
  • "Commoditization of legal services and documents induces the mindset of the cheaper the better."
  • "There has long been a perception, reflected oftentimes in negative humor, that attorneys are solely concerned with making money.... That perception must change.... [A]ttorneys must better communicate the value of the breadth of their knowledge and wisdom if they want to remain competitive in the marketplace...."

Ms. Stewart asks "Are companies that provide DIY legal documents engaging in the unauthorized practice of law in Pennsylvania?" She observes that such a claim has not yet been heard in Pennsylvania.

Ms. Stewart outlines several recent cases from other states.  She concludes by encouraging lawyers to engage in introspection and to think deeply: 

"Do we distinguish ourselves by rising to the occasion with our integrity, skills, knowledge and wisdom?  Or do we just continue on the path already trod while the public continues to search for the cheapest way to deal with life's most important issues?" 

The issue containing the article is currently available only to members of the Pennsylvania Bar Association. Worth tracking down the full article!

March 3, 2015 in Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

The Economic Cost of Conflict of Interest for Advisors on Retirement Investments

The White House Council of Economic Advisors released "The Effects of Conflicted Investment Advice on Retirement Savings" in February 2015, and the report is a must-read for anyone teaching courses on aging policy. 

The major focus of the analysis is on evidence of  "conflicts of interest" for those advising individuals on roll-over investment of IRA accounts, but the findings undoubtedly have relevance beyond that window on retirement planning.

The decision whether to roll over one’s assets into an IRA can be confusing and the set of financial products that can be held in an IRA is vast, including savings accounts, money market accounts, mutual funds, exchange-traded funds, individual stocks and bonds, and annuities. Selecting and managing IRA investments can be a challenging and time-consuming task, frequently one of the most complex financial decisions in a person’s life, and many Americans turn to professional advisers for assistance. However, financial advisers are often compensated through fees and commissions that depend on their clients’ actions. Such fee structures generate acute conflicts of interest: the best recommendation for the saver may not be the best recommendation for the adviser’s bottom line.

The report focuses on the quantifiable cost from conflicted advice, concluding that savers receiving such advice "earn returns roughly 1 percentage point lower each year."  But isn't there also a deeper cost, as the large swath of middle-income Americans, who may have justified fears of being able to safely evaluate investment risk and their investment advisors, do nothing productive with their savings? 

The New York Times editorial board draws upon the White House Council's report to call for adoption of reality-based rules on fiduciary duties for the financial services industry.  See NYT's "Protecting Fragile Retirement Nest Eggs."   

March 2, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Property Management, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, February 27, 2015

Giving While Living -- Completing Chuck Feeney's Original Mission for Atlantic Philanthropies

For more than twenty-five years, The Atlantic Philanthropies has been one of the most important funding sources for nonprofit and NGO work on health, education and equality issues in the U.S. and beyond, often providing key support for legal advocates including those at the National Senior Citizens Law Center (with its new name, Justice in Aging). My first encounter with AP began in Ireland in 2009-10, when I was based at the Changing Ageing Partnership, an AP funded-project at Queen's University Belfast.  

Everywhere I turned during that sabbatical, I encountered the good works underway as the result of Chuck Feeney's decision in the mid-1980s to transfer virtually all of his considerable personal wealth to Atlantic.  I learned that for the first half of AP's history, the grantmaking was anonymous and Chuck Feeney's role was largely unknown.  The publication of The Billionaire Who Wasn't, by Irish writer Conor O'Clery, helped to change that visibility, and Mr. Feeney began to embrace a more public commitment to "giving while living." 

My own work was impacted by what I learned that year, and I soon added a course on Nonprofit Organizations Law to my teaching package at Penn State's Dickinson Law.

Now Atlantic Philanthropies is facing its final two years of new grants, with 2016 being the concluding year.  The final grants will focus on four themes:

Continue reading

February 27, 2015 in Books, Current Affairs, Ethical Issues, Grant Deadlines/Awards, International | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

The French "Bettencourt Affair" - A "Universal Story" on the Cover of the NYT

The New York Times  offers dramatic front page coverage of a criminal trial against ten defendants in France, accused of manipulation of Liliane Bettencourt, the 92 year-old heir of the L'Oreal cosmetics fortune.  The defendants include a "celebrity photographer" (and his "long-time companion"), a former wealth manager, and an 81-year-old notary "who certified, with misgivings, Mrs. Bettencourt's decision to make" the 67-year-old photographer her sole heir, cutting out her only daughter. 

Serious money is involved, with Forbes once estimating Mrs. Bettencourt's fortune at more than $40 billion.  She has been diagnosed with "dementia and moderately severe Alzheimer's."

The prosecutors said her advanced age, the beginnings of dementia and a daily medical regimen of 56 pills, including antidepressants, also invited exploitation. And investigators contend that the schemes were so widespread that they included a political scandal involving a former finance minister seeking cash for the 2007 presidential campaign of Nicolas Sarkozy.

 

Some of the house staff members risked their jobs to challenge her advisers and confidants, particularly a French society photographer who gained the largest share of her fortune. At one point, investigators estimated that share to be about a billion euros, or $1.13 billion, in gifts during 20 years of friendship ending in 2010.

 

“Liliane wanted to do things for me, to ease my life,” testified the photographer, François-Marie Banier, 67, who is facing the highest penalty of the defendants, three years in prison. “I refused things like a mansion. But she took it so poorly. It’s really hard to cross that extraordinary woman.”

For all the details, sadly familiar if you followed the Brooke Astor history of wealth and manipulation, about the trial that just ended before a panel of judges who will issue their verdict on May 28, read "The Case of L'Oreal Heiress, A Private World of Wealth Becomes Public."

February 26, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)

Graying of American Voters: One of Top Ten Demographic Trends Affecting Policies & Politics

A new research project on demographics of the U.S., with funding from The William and Flora Hewlett Foundation, brings together the Center for American Progress, the American Enterprise Institute, and demographer William H. Frey of the Brookings Institution.   The project goals are:

  • To document and analyze the challenges to democracy posed by the rapid demographic evolution from the 1970s to 2060
  • To project the race-ethnic composition of every state to 2060, which has not been done for 20 years
  • To promote a wide-ranging and bipartisan discussion of America’s demographic future and what it portends for the nation’s political parties and policy

The team's first report identifies a Top Ten list of demographic factors likely to impact the future of both policy-decisions and politics, including #6 on the "Graying of America."  Graphics illustrate each of the projections, including this one on aging.

Graying of American Electorate

For more complete results, see The States of Change: Demographics and Democracy, 1974 to 2060.

Thanks to GW Law Professor Naomi Cahn for sending this report! The statistics should  be useful for generating student discussion in a wide range of courses. 

February 26, 2015 in Current Affairs, Discrimination, Ethical Issues, Statistics | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

Home Care Workers Join Forces to Advocate for Fair Wages

USA Today reports on home care workers "joining a nationwide movement" to raise wages,  with rallies planned for "more than 20 cities in the next two weeks." 

As described by journalist Paul Davidson,

"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging  Baby Boomers over the next decade.

 

'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."

According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."

Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.

February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

National Consumer Law Center Webinar on Medical Debt & Collection Practices

The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.

The hosts describe the webinar as follows:

This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance. 

Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.

Here is the link for REGISTRATION.  Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families. 

February 24, 2015 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | TrackBack (0)

Monday, February 23, 2015

Moments of Lucidity vs. Mental Capacity

On Saturday, I had the privilege of attending the 7th Annual Conference of the Pennsylvania  Association of Elder Law Attorneys (PAELA), to give a presentation with Dr. Claire Flaherty, a Penn State Hershey Medical Center neuropsychologist with special expertise in frontal and temporal lobe impairments, on "Dementia Diagnosis and the Law."  February Snow 2015

Another speaker, Teepa Snow, an occupational therapist with long-experience in behavioral health, brain injury and dementia care, spoke on Sunday. 

It was one of the rare times when I've been glad to be "snowed in" at a conference, as that kept me in place for both days of the presentations, rather than rushing home to work on some other task. 

One of the topics that was discussed by attendees over the two days was the question of whether testimony by witnesses who observe "moments of lucidity" -- standing alone -- is proper support for a finding of "legal capacity." Context is important, of course, as both common law and statutory law increasingly recognize that capacity should be evaluated in terms of specific transactions. 

My own takeaway from the health care experts was the need for some measure of caution in this regard.  With many forms of dementia, especially at the early stages, unrecognized impairment of judgment may precede recognized impairment of memory.  In other words, as I understand it, we may spend too much time being impressed by a client's ability to remember who is the president or the names of their children, and too little time asking more probing questions.  Deeper inquiry may reveal or ameliorate concerns about judgment, including an individual's current abilities to make decisions, make reasonable, rational connections in formulating or following a plan, and related skills such as empathy or self-awareness.

Along this same line, it is a good time to remind readers that there are three useful handbooks on "Assessment of Older Adults With Diminished Capacity," one directed to lawyers, one to psychologists, and one for judges, that were created by experienced professionals working as a team on behalf of the American Bar Association and the American Psychological Association (APA).  Individual copies can be downloaded without cost from the APA website.  

February 23, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Science | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2015

Cutting Edge in Seasoned Cooking; Not So in Hiring "Seasoned" Employees?

Seasons 22 Restaurants, with locations in more than ten states nationwide, has a reputation for dining that emphasizes farm-to-table freshness, naturally seasoned cooking, and with a pledge that nothing on the menu is over 475 calories.  Cutting edge, and hip.

Not so hip are the allegations by the EEOC that since 2010 the chain "engaged in a nationwide pattern or practice of age discrimination in hiring hourly workers," as described in a lawsuit filed by the EEOC this month:

"According to the lawsuit, various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees, and telling applicants that Seasons 52 'wasn't looking for old white guys.'

 

Age discrimination violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit Civil Action No. 1:15-cv-20561-JLK, in U.S. District Court for the Southern District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks monetary relief for applicants denied employment because of their age, the adoption of strong policies and procedures to remedy and prevent age discrimination by Seasons 52, and training on discrimination for its managers and employees.

 

'This case represents one example of the barriers to hiring that some job applicants face,' said Malcolm S. Medley, district director for the EEOC's Miami District Office. 'Eradicating barriers to employment opportunities is a priority of the Commission.'"

Thanks to students in the Elder Law class at George Washington Law for sharing news of this case, which includes the response by Darden (the parent company) spokesman, denying the allegations and pledging to "defend this claim vigorously."

February 20, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

Should an Individual's "Vulnerability" be a Defining Criterion for Social Welfare Policy or Services?

Emory Law Professor Martha Fineman, long known for her feminist jurisprudence, has attracted increasing attention for her work on specific concepts of dependency and vulnerability.  Her 2008 analysis of vulnerability, rather than, for example, gender or race, as a tool to shape a more responsive state and a more egalitarian society, has been seminal.

Syracuse Law Professor Nina Kohn, in her latest work, "Vulnerability Theory and the Role of Government," notes the "attractiveness" of vulnerability theory, but pushes back against the growing reliance on it as a policy tool, using her own understanding of old-age related government services as the basis for comparison. She raises a serious concern about the potential for the current definition and focus on vulnerability to promote "unduly paternalistic laws." For example, Professor Kohn writes:

"Vulnerability theory as currently articulated would focus attention on maximizing safety and security without adequately considering the impact of potential laws and policies on individual autonomy, or how a sense of autonomy may actually contribute to an individual’s safety and security. This effect is particularly problematic in the context of evaluating laws that seek to protect individuals from entering into or maintaining personal relationships perceived to be unsavory, as is the case with many of the policies designed to protect older adults from abuse, neglect, and exploitation. This is because the autonomy being undermined is the autonomy of the person whom the state is trying to help; since undermining an individual’s autonomy can harm that person in both tangible and intangible ways, the state’s actions are prone to being at least partially counterproductive. Thus, vulnerability theory might be of greater prescriptive value if it distinguished between infringements on autonomy where the person whose autonomy is being sacrificed is the supposed beneficiary of the infringement and infringements on autonomy designed to benefit another."

Professor Kohn's article, published in the most recent issue of Yale Journal of Law and Feminism, uses recent changes in California law to demonstrate a framework for revision of the current theory of vulnerability, with a goal of identifying a "standards based approach" for specific government response.

February 19, 2015 in Crimes, Discrimination, Ethical Issues, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

Questions Raised by Doctor's Guilty Plea for Kickbacks from Prescribing Risky Drugs to Seniors

A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close.  Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company.  As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."

The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties.  He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."

The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined."  Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.

Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money?  At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use?  Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress? 

In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important.  But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs.  Isn't objective study of the history of these real patients a very proper use of the penalties? 

February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Canadian Centre for Elder Law in Vancouver: Call for Abstracts for November 2015 Conference

The Canadian Centre for Elder Law and the British Columbia Law Institute have extended a call for panel proposals for their November 2015 Elder Law Conference in Vancouver. Canadian Centre for Elder Law 

The themes for the two day conference are: 

November 12 (Day 1): Connecting Across Discipline and Geography:

Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults.  Particular topic areas we are seeking include:

  •  elder abuse,
  • assisted living and retirement housing,
  • financial abuse,
  • guardianship,
  • pensions,
  • age friendly communities,  and
  • outreach strategies. 

November 13 (Day 2): Key Practice Challenges and Hot Topics in Legal
Practice:


Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.

Contact National Director Krista Bell with any questions, and additional details, including submission information are available here.

February 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Do "Elder Law" Attorneys Have Regrets at the End of Their Careers?

ABA's Litigation magazine's Winter 2015 issue has an interesting theme -- "regrets" -- and I encourage all attorneys and law professors to track it down.  Lots of gems here, offering plenty of stimulus for conversation.

Famed trial attorney Gerry Spence starts off one of the articles in this way:

"Like most old men looking back, I tend to forget the major regrets in my life.  Mine may been becoming a trial lawyer in the first place.  I learned how to try case by failing.  I regret I wasn't taught in law school the first rudimentary principles of a jury trial.  But how could that happen when most of the professors had never been in a courtroom?....

Spence continues:

"In short, the justice system is broken....  I've labored in the system for over 60 years, and I regret, not winning, but in contributing to the myth that there's liberty and justice for all. I regret aiding and abetting the 'appearance of justice' that continues to defraud most Americans who have never awakened one day to find themselves crunched in the system...."

Abe Krash, with a 50 year career at D.C.'s Arnold & Porter law firm, shares his thoughts, thoughts that are on the whole, more positive that Spence's, but include:

"The bloom on the Washington legal rose began to fade somewhat in the mid-1980s during the era of deregulation.  At about the same time, the legal profession began to change in significant ways.  I applaud a number of the changes... such as the widening opportunities afforded to women and minorities.  But like many others of my generation, I regret some of the changes, including the shift among large law firms from a partnership mode to a corporate mode."

Elder Law, which as a specialization is still relatively young, is now "old enough" to see a first generation of long-time practitioners contemplating their own retirements. I wonder how the theme of "regrets" might play out for these individuals?  

Comments can be posted anonymously (and we screen for appropriate language, etc.). 

February 16, 2015 in Ethical Issues, Legal Practice/Practice Management, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2015

Television Investigative News Report Focuses on N.H. Lobby in Pennsylvania

 

WTAE-TV in Pittsburgh, offers an inside look into the alleged role of nursing home lobbyists associated with the Pennsylvania Health Care Association (PHCA) in crafting a notice posted by the Pennsylvania Department of Health, stating that its inspection survey reports "are not intended to be evidence of compliance with any legal standard of care in third-party litigation."  (According to WTAE-TV, an original "disclaimer" label on the notice was recently changed by the Department of Health to "explainer.")

Here's a link to coverage, including an article and video, at WTAE-TV: "Emails reveal nursing home lobbyists pressuring state on lawsuits -- Inspection reports not allowed in lawsuits?"

UPDATE:  Here is a link to the Pennsylvania Department of Health's nursing care facility locator website, where a detailed "Explanation" of the survey inspection process appears.  The notice includes the language quoted by the news report above, and appears the first time you access that website.  However, once you press "okay" on the notice, it disappears. 

Additional Update: Here is another link to "just" the explanation.  As several readers commented, the location of this explanation on the Department of Health website is potentially  confusing, as it appears to apply to any Medicaid or Medicare provider that is subject to inspections, but the title on the page as of today's date says "except nursing homes."

February 13, 2015 in Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Administration on Aging Issues New Rules on States' Long-Term Care Ombudsman Programs

New rules from the "Administration on Aging of the Administration for Community Living." Honestly, is that the longest title for any unit in federal government? AoA and ACL operate under the Department of Health and Human Services (HHS) and recently issued new final rules governing Long-Term Care Ombudsman Programs.  

Ombudsmen have traditionally had important roles to play as advocates for elderly or disabled residents in facility-based care.

The new rules complete the process of approval that commenced with proposed rules in June 2013.  The effective date for the new rules -- deferred to permit implementation and training -- is July 1, 2016.

In a recent email to interested stakeholders, David Godfrey, senior attorney at the ABA's Commission on Law and Aging, comments positively on the new rules:

"Exciting news! ... A culmination of several years of collaborative work with our partners, this rule guides implementation of the portions of the Older Americans Act governing grants to states for operation of Long-Term Care (LTC) Ombudsman programs.

  • Key issues this rule addresses include:
  • Responsibilities of key figures in the system, including the Ombudsman and representatives of the Office of the Ombudsman;
  • Responsibilities of the entities in which LTC Ombudsman programs are housed;
  • Criteria for establishing consistent, person-centered approaches to resolving complaints on behalf of residents;
  • Appropriate role of LTC Ombudsman programs in resolving abuse complaints; and
  • Conflicts of interest: processes for identifying and remedying conflicts so that residents have access to effective, credible ombudsman services."

As noted in the introduction to the new rules, a major reason for the change is to achieve better consistency across the nation, while still preserving the "independence" that has been a hallmark of the best programs. 

Continue reading

February 12, 2015 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Phantom Fixation -- Just One of the Weapons Used by Fraudsters

AARP has a fabulous video, using the voices of brave victims, to examine the Weapons of Fraud employed by con artists.  The speakers span all ages (in fact, I think I saw a Penn State logo on one of the candid, younger victims), and thus the clear message is that anyone can be a risk. 

The short (about 15 minute) and intriguing video seeks to inoculate viewers from the risk factors of the pitch. as discussed further on Boston College's Squared Away Blog.  

I think one of the most useful parts of this video is identifying and naming the ways that standard marketing tactics are magnified and used to persuade individuals to participate in the con. The techniques include establishing a "phantom fixation," through promise of a sudden windfall that will be available to you  and only you... if you just talk to them long enough (oh, and yes, send them money). 

Law students will also appreciate the example of the "Miracle Shim" to demonstrate misuse of "social proof," "authority," and  fake "scarcity," and other techniques. 

 

Hat tip to ElderLawGuy Jeff Marshall, Esq. for these links.  

February 9, 2015 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 4, 2015

Part 2 of "Death of a Black Nursing Home" - Medicaid's Racism

Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care.  In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:

"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.

Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.

Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”

The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure.  The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:

"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.

One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.

Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.

But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."

The full articles are interesting -- we will link to any future parts of this bold series.

February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)