Wednesday, April 23, 2014

Dementia Diagnosis and the Law

On April 24, I have the good fortune to be working with a neuropsychologist from the neurology department at Penn State Hershey Medical Center in presenting a program on "Dementia Diagnosis and the Law," for a meeting of the Estate Planning Council in York, Pennsylvania.  Professor Claire Flaherty and I have "traded" presentations in the past, with her speaking at the law school and me speaking at the medical school, but this will be our first time presenting together.  We're excited. 

One of the important lessons that I've learned in working with Claire is the clear potential for cognitive impairment to exist without the "usual" symptoms associated with "Alzheimer's."  For example, much of Claire's work is with patients and families coping with early onset dementias.  Because Frontotemporal Dementia or FTD (sometimes also referred to as Frontotemporal Lobar Degeneration or FTLD) can begin to manifest in persons aged 45 to 64 years, the onset may be overlooked or misunderstood. Plus, as Claire reminds me, "FTD is primarily a disease of behavior and language dysfunction, while the hallmark of Alzheimer's Disease is loss of memory."

For legal professionals, including those asked to prepare deed transfers, wills or estate planning documents, the potential for subtle presentations of cognitive impairment can be especially significant.  Making sure the client is oriented as to "time, place and person" may not be enough to address the potential for loss of judgment, thus opening the door for unusual gifts, risky financial decisions or even of adamant rejection of once trusted family members. 

A good place to turn for information about early onset forms of dementia, including FTD, is the Association for Frontotemporal Degeneration or AFTD -- or join us for the York Estate Planning Council meeting this week.  

April 23, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Sunday, April 20, 2014

Is There an "Age War" Looming?

The title of a piece in the April 2014 issue of AARP Bulletin, "Dispatches from the Battle of the Ages," suggests that we're already in a battle between older and younger people, with the article detailing media reports about battlelines on jobs, funding for federal benefit programs, health care costs, and caregiving obligations. 

"Alarmists use ... statistics to paint a portrait of generational warfare.  But are they mounting that picture in the wrong frame?  To paraphrase a slogan from the 60's peace movement, 'Suppose they gave a generational war and nobody came?'"

The article suggests an interesting resource, Paul Taylor's book (released in March), The Next America. 

"Taylor [executive vice president of special projects at the Pew Research Center in Washington D.C.] and his Pew Colleagues conducted opinion surveys and pored over decades of demographic data.  Yes, there is a palpable anxiety about the lingering recession and long-term problems associated with entitlements, plus the runaway national debt.  Yet Taylor notes this anger transcends age barriers."

At times I do hear a strong resentment among students, both at the college level and in law school, and yet at the same time, I am also impressed by how many students choose to take courses and look for jobs in fields that will serve older adults.  Is there a "war" -- or is it more of a struggle to find firm footing on ground that is ever shifting? 

April 20, 2014 in Books, Current Affairs, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FINRA Arbitration Awards Damages, But Also Attorneys' Fees Under California Elder Abuse Laws

An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners.  The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.

As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed. 

The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company.  This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators.  News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.

FINRA, created in 2007,  is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission.  A single arbitral award of $1+ million through FINRA is interesting by itself.  For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors. 

But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award.  Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40%  of the award is not unusual in this challenging field.  Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees.  So the award of compensatory damages and interest, plus attorneys fees' is significant. 

Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."   

April 17, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Catch-Up Friday: Furor Over Filial Support, Mutual Responsibility & Related Laws

It is Friday and time for a catch-up on recent law review articles.  I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world.  Here are highlights from recent comments and articles (minus those pesky footnotes):

"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):

"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility." 

"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013): 

"The costs of long term care are staggering  and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."

"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):

"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support.  A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."

In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining.  Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman."  She proposes:

"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."

Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.

April 11, 2014 in Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Hot Topic: "How to Get Older Drivers Off the Road"

Digging out December 2010"How to get older drivers off the road." 

That's a frequent paper topic proposal for students in my Elder Law course, and one that usually triggers a conversation about the potential for "ageism." I remind students it will be important to provide evidence in support of their proposals, and not simply recount anecdotes about bad older drivers.  

But, in truth, there is plenty of data to identify risks associated with older driving, as suggested by Elder Law Attorney Robert Fleming on his great Blog, citing statistics from the Center for Disease Control about risks for "fatal" accidents over age 75.  See "Driving, Aging and Dealing with Family Dynamics."

ElderLawGuy Jeff Marshall takes a very personal look at his own driving future on his Blog, and uses that moment of self reflection to also examine strategies for encouraging older drivers to give up the keys.   Read "What to Do When Dad Shouldn't Be Driving."   

This is another area of "social policy" where the laws are not uniform on how to intervene when the older driver refuses to stop driving or to make other appropriate adjustments in when and where to drive.  Here is a link from the insurance industry's Claims Journal to a recent "State by State Look at Driving Rules for Older Drivers." 

And, for a somewhat more theoretical approach to the topic, from University of Miami Law Professor Bruce Winick, the always thoughtful guru of the therapeutic jurisprudence movement, see "Aging, Driving and Public Health: A Therapeutic Jurisprudence Approach."  Professor Winick proposes creation of community-based "safe driving centers," as a means of encouraging impaired drivers "voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions."

And of course, we have Professor Becky Morgan's preferred solution, the Jetsons' car that drives (and parks) itself.  Read "New Study on Autonomous Cars."  

April 3, 2014 in Consumer Information, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Professor Jonathan Barry Foreman: Responding to "Longevity Risk"

Prof. Jonathan Barry ForemanUniversity of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014. 

He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S.   As  several recent studies demonstrate, such as those cited on the Elder Law Prof Blog  here, here and here, many people are not adequately prepared in terms of finances for retirement. 

In responding to this risk, Professor Foreman writes thoughtfully, proposing  systemic alternatives, including expansion of Social Security and SSI for "the oldest old."  Professor Foreman suggests 90 years of age as the starting point for that category.  In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages. 

He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:

"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.

 

While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."

Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this.  The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble. 

April 2, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

March 31, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (1) | TrackBack (0)

Friday, March 28, 2014

Failure of Consideration and Promises to "Care for Grandma for the Rest of Her Life"

This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.

This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life."  Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc.  This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage. House

I ask the students to brainstorm Grandmother's options.  Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period. 

Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission.  Good job!  Except that I am usually careful in my hypo not to make Grandchild overtly manipulative.  And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.

This week, students also suggested "failure of consideration" as grounds for rescission.  There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:

  • Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
  • Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member. 

After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families.  In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old.  The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law. 

Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?

March 28, 2014 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (2) | TrackBack (0)

Tuesday, March 25, 2014

Surrogate Decision-Making to Preserve Sexual Autonomy for Residents in Nursing Homes

William and Mary Law School student Elizabeth Hill takes on the challenge of discussing sex and seniors in her Student Note, "We'll Always Have Shady Pines: Surrogate Decision-Making Tools for Preserving Sexual Autonomy in Elderly Nursing Home Residents" for the Winter 2014 issue of the William and Mary Journal of Women and the Law.  She concludes:

"With changes to state law to expand the tool of power of attorney, residents who want to retain autonomy in decisions about their bodies and relationships could employ surrogate decision-making tools like durable powers of attorney and advance healthcare directives to ensure that they are able to participate in and enjoy sexual activity even after the have lost the capacity to consent and even if their families disapprove of the activity. Perhaps the most difficult aspect of adopting such a mechanism would be putting aside our personal and preconceived notions about sexual conduct in order to allow others to experience a little happiness in an otherwise gloomy setting."

The title for the article, alluding to Humphrey Bogart's famous line in Casablanca, is a clever introduction to a sensitive topic. 

March 25, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Call for a "Collaborative National Strategy" On Elder Abuse

Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:

  • Lack of a comprehensive, national mandate for safeguard of older adults;
  • Lack of innovative legal reforms at the state level;
  • Ageism;
  • Invisibility of our older people;
  • Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
  • Absence of an international normative framework for protecting the rights of older persons.

All of these points strike a chord for those who work on behalf of victims of abuse in the United States.  Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.    

March 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Student Comment on Expansion of Medicaid Estate Recovery

From 3L student Katie L. Summers at my own law school, Penn State Dickinson,  a recently published Penn State Law Review comment titled "Medicaid Estate Recovery: To Expand, or Not to Expand, That is the Question."  Here is a taste, from the abstract:

"To recoup some of the costs of Medicaid, the states are required to implement a Medicaid estate recovery program.  There are certain mandated requirements, but the reach of the recovery program is primarily left to the discretion of the states.  Pennsylvania recently contemplated expanding its Medicaid estate recovery program, but the proposed changes were not enacted.  This Comment provides an overview of Medicaid estate recovery in Pennsylvania by exploring the background of Medicaid, Medicaid estate planning, and Medicaid estate recovery generally.  In addition, this Comment examines the arguments for and against Medicaid estate recovery.  Finally, this Comment recommends the creation of a system that expands Medicaid estate recovery in Pennsylvania, while retaining certain protections for the deceased Medicaid recipient’s heirs."

March 17, 2014 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2014

"Choosing Wisely" -- Recommendations for Medications & Treatments in Senior Care

The American Geriatrics Society and the American Board of Internal Medicine Foundation have joined in a venture called "Choosing Wisely," and recently issued "Five Things Physicians and Patients Should Question." 

The items are intended to stimulate more thoughtful decision making, especially in dementia care, and address diet, restraints, and use of screening tests.  Two items that hit home include:

  • Don't prescribe cholinesterase inhibitors for dementia without periodic assessment for perceived cognitive benefits and adverse gastrointestinal effects.
  • Don't prescribe any medication without conducting a drug regimen review.

This "Five Things" list was actually the second set of "Choosing Wisely" recommendations.  Here's a link to the important first list, which includes the concern about off-label prescriptions of antipsychotic medications to treat symptoms in dementia, a topic that has also been the subject of major whistleblower cases and settlements involving the pharmaceutical industry. 

March 5, 2014 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

A Closer Look at Assisted Suicide Charges in Commonwealth v. Mancini

As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b).  The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus.  Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.

The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge.  There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available.  So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:

  • What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law. 
  • Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.   
  • Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts. 

In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."  

In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide.  Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity." 

What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide.  The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die.  We cannot just stick our heads in the sand and say "this case isn't likely to happen again."

The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.

Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas.  As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law. 

February 27, 2014 in Advance Directives/End-of-Life, Crimes, Current Affairs, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

"Outside" Whistleblower in Senior Care Industry to Receive $5.7 Million

In a previous post, I reported on a senior care whistleblower case, where a court ruled that a former corporate officer, who was also the in-house counsel, cannot participate in a False Claims Act suit, if the information supporting the claim comes from privileged communications received in his role as an attorney.  The two other former executives of the company, non-lawyers, could have participated as qui tam plaintiffs; however the entire case was dismissed by the court as a sanction for improper disclosure of attorney-client privileged information.

Most whistleblowers are insiders, either current or former employees; however, that is not always true.  The "relator" (that's False-Claim-Act-speak for whistleblower) in a suit brought against RehabCare, Rehab Systems, and Health Systems, Inc. was the CEO of a competitor, Health Dimensions Rehabilitation, Inc., who first heard about a successful use of "referral fees" during a public conference call hosted by RehabCare. 

 "Pride goeth before a fall," as our mothers might say.  In this case, the CEO's research into the referral fees resulted in allegations the fees were intended to generate referrals of clients covered by Medicare and Medicaid, thus giving rise to alleged violations of the federal Anti-Kickback Act.  The defendants denied all allegations. 

In the RehabCare case, which settled earlier this year for a reported $30 million, the whistleblower, Health Dimensions Rehabilitation, Inc. is in line to receive about $5.7 million from the settlement, according to the U.S. Justice Department. 

Penn State Dickinson School of Law is hosting a half-day program examining "Whistleblower Laws in the 21st Century," on March 20, 2014Speakers include both academic scholars and experienced attorneys who have advised or represented parties in False Claims Act cases in health care, including "senior care." 

February 20, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, February 13, 2014

Pennsylvania Court Dismisses Charges for Daughter/Nurse Charged with Assisted Suicide

In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice.  Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter.  Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest. 

On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini.  News reports point out that the court order was issued on the one year anniversary of her father's death.  The parties had been under a gag order.  Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices

My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.

My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a  "Face Book" approach to building momentum for social change and law reform.

February 13, 2014 in Crimes, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Incapacity and the Second Amendment

Florida elder law and estate planning attorney Carla-Michelle Adams observes that state laws, such as that of her home state, are often silent on whether a guardianship determines the right of a ward to possess or access guns.  In an editorial column for the Florida Bar Journal in December 2013, "Grandparents, Guns and Guardianship: Incapacity and the Right to Bear Arms," she urges clarification of state laws to avoid confusion under the Constitution, and contends that guardianship orders should specifically address gun posession: 

"It is imperative that the right to bear arms is effectively removed by order of the court upon a finding of incapacity as a preventative measure for the ward and the community at large. Without legislation specifically indicating that the right to bear arms shall be subject to elimination upon a finding of incapacity, there is a question as to whether the Second Amendment right is subject to retention by the mentally incapacitated ward; the [Florida] statute is ambiguous to this end."

February 10, 2014 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, February 7, 2014

Whistleblower Claims May Be Big Business, But Certain People Can't Be Plaintiffs

In United States ex rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc., decided by the Second Circuit on October 25 2013, we see another qui tam suit, where former employees allege the company's participation in a scheme to defraud Medicare and Medicaid, this time by allegedly underpricing certain services in order to stimulate referrals of clients who qualified for higher rates under Medicare or Medicaid coverage.  That allegation triggered the federal Anti-Kickback Statute that applies to federal health care programs. 

If anyone is interested in -- or skeptical about -- making a whistleblower claim part of a "business plan," just read this decision.  The plaintiff, Fair Laboratory Practices Associates, was formed as a partnership by three former employees, who combined their knowledge in an attempt to confront what they believed were fraudulent sales practices.  The federal False Claims Act permits successful whistleblowers to share in any financial recovery for the U.S.   

Just one little problem.  One of the members of the partnership was a former vice president and general counsel for the defendant corporation, and he was disclosing information received in his role as the only in-house lawyer for the company. Indeed, as reported in the opinion, that is exactly why the other two whistleblowers invited him to join their partnership, because his status as a lawyer "would improve our credibility with the government." 

Unfortunately for the plaintiffs' group, it also triggered Rule 1.9 of New York's ethical rules, prohibiting a lawyer from disclosing confidential information of former clients.  While the 2d Circuit credited the attorney's contention that he reasonably believed his employer intended to commit a crime, the court concluded the level of disclosure was "greater than reasonably necessary to prevent any alleged ongoing fraudulent scheme."   The Court rejected the argument that the policies underlying the False Claims Act trumped the state's ethical rules for legal counsel.

More importantly, the court concluded that although the other two non-lawyer partners could have filed the qui tam action based on the information they alone possessed as former executives for the company, once their knowledge became entwined with the attorney's unauthorized disclosures, the partnership as a group was disqualified.  Case dismissed (although the Court does leave the door open for a new relator as plaintiff, or the U.S. on its own). 

Here's more on the case by Joseph Callanan, an associate editor for the American Bar Association's Litigation News.   

Here is useful background on the federal Anti-Kickback law, courtesy of the American Health Care Association.

February 7, 2014 in Ethical Issues, Federal Cases, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Thursday, February 6, 2014

Elder Law & the Future: What Role for "Limited License Legal Technicians?"

What are "limited license legal technicians" or LLLTs?  As defined by the Supreme Court of Washington in an order issued in June of 2012, LLLTs are individuals who achieve certification through a new state program, authorizing them to provide specific legal services within specific substantive areas of law and law-related practice. 

Why create the LLLT alternative, especially in a country and during an economy where there are, arguably, more than enough underemployed lawyers?  As the Washington Supreme Court carefully details, the current civil legal system "is unaffordable not only to low income people but, as a [2003 state study] documented, moderate income people as well...."  For low income people, the "underfunded civil legal system is inadequate" to meet their very real needs.  For many who are moderate in income, "existing market rates for legal services are cost-prohibitive."  A new means of meeting public need is warranted, says the Court. 

Why is a system of licensing LLLTs in the State of Washington potentially very significant to the practice of Elder Law?  Washington has identified four areas of unmet civil law needs: Family Law, Immigration, Landlord/Tenant, and... yes, Elder Law. 

Very interesting!  The first practice area to be certified in Washington will be "Domestic Relations," with the Limited License Legal Technician Board expecting to begin accepting applications for a licensing examination in late summer or early fall of 2014.  No indication yet on when "Elder Law" LLLTs might be certified. In the roll-out design, applicants must first satisfy threshold educational standards, including holding at least an associate level degree, plus 45 credit hours at an ABA-approved program (which, for the moment at least, means an ABA approved law school). Details on the certification process are available on the Washington State Bar Association's website, here.   The University of Washington's School of Law has announced its "inaugural program" for LLLTs in family law to begin in the winter quarter of 2014. 

While I suspect this movement might make existing Elder Law attorneys a bit nervous, my own research points to the very real need for more widely available, trustworthy legal advice.  For example, Penn State Dickinson law students, with financial support of the Borchard Foundation's Center on Law and Aging, helped me to conduct focus groups drawn from a wide range of income, race, ethnicity and gender orientation, from locations all across Pennsylvania. In English and in Spanish, in inner cities and rural senior centers, we asked about their views and experiences with accessing legal assistance with Social Security, Medicare, Medicaid, insurance and other legal questions of concern to older persons.  As summarized here, fear of the cost of seeing a lawyer, and the difficulty in finding free or affordable attorneys who were "trustworthy," were  concerns clearly raised in each of the focus group sessions. That study pointed to the need for elder law specialists -- but not necessarily to a need for "just" Elder Law attorneys

Big thanks go to Penn State Dickinson Professor Laurel Terry, our in-house guru on all things cutting edge in the practice of law, for sharing with me the latest materials on Washington's LLLT program.  

February 6, 2014 in Consumer Information, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

The Corner Drug Store: Ending Tobacco Sales and Increasing its Visibility as a Health Care Clinic

CVS Caremark is drawing a lot of attention with the recent announcement of its decision to stop selling tobacco products in its drug store operations.  Many, including the NYT and McKnights, are highlighting this decision as a pro-health measure, and certainly that should be true.  News coverage of CVS suggests that other drug store chains are considering whether to adopt the same policy. But, the decision also highlights CVS' role in a major consumer trend; consumers are seeking what might be called retail health care at the corner drug store.  This trend is arguably a move away from, or at least a major supplement to, a more traditional setting where a primary care physician's office is the access point for health care assessments.  CVS' decision is part of its enhanced image as "health care provider."

I've been fascinated to see the popularity, especially among my parents' generation (in their 80s!), of using the "clinic" at the drug store to get complaint-specific treatment.  Ease of access is certainly a major part of the appeal.  I suspect that another factor is the decision of many trusted family physicians to retire.  Indeed, my parents have now outlived the working lives of several sets of doctors. 

At the same time, I worry about what might be missed when a customer uses the local drugstore "clinic" for a specific complaint -- and when those visits start to multiply.  The pharmacy clinic does not have the decades of records that can help to explain a patient's symptoms and progress.  Are there missed opportunities for whole person health care? And is the drug store clinic potentially "eager" to prescribe -- and sell -- drugs? 

February 6, 2014 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 5, 2014

A Practical and Compassionate Guide to Sexuality & Dementia

An important new book, Sexuality and Dementia: Compassionate & Practical Strategies for Dealing with Unexpected or Inappropriate Behaviors, published in December 2013, offers a physician's candid assessment of a topic often discussed, if at all, only in hushed tones.

Reading the first chapter called to mind a colleague in aging studies, a nurse, who related to me how a tearful woman once asked her how to hire a prostitute, as her husband was in the mid-stages of dementia and constantly wanted sex. The wife as the home caregiver was, in a word, exhausted. This book recognizes that a wide range of sexual behaviors often accompany dementia.  Sexual agression is sometimes even a sign that something has changed in the individual's cognitive functioning, only later recognized as an early step in the process of dementia.

The author, Geriatric Neuropsychiatrist Douglas Wornell, is quite critical of the medical profession's approach -- or rather a frequent failure to even discuss -- the topic.  Dr. Wornell observes that "to date, patients and their partners have been virtually abandoned by an entire medical system that has provided little to help them with sexuality as it relates to dementia. Considering the numbers of people affected -- tens of thousands of people in my practice alone -- that abandonment is nothing more than shocking."

The book is written in plain terms, covering everything from the "neurobiology of sex and dementia" to the potential for medication to stimulate -- or alleviate -- the condition, while also discussing the impact of the behaviors in the home and in more formal care settings. 

February 5, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)