Friday, October 21, 2016

LeadingAge's Annual Meeting Begins October 30 in Indianapolis

LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October.  This year's theme is "Be the Difference," a call for changing the conversation about aging.  I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns.  For example, this year's line up of workshops and topics includes:

October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Thursday, October 20, 2016

Should Judges Have Mandatory Retirement Ages? What's the "Right" Number?

Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions.  In a perfect world, merit-based criteria should be the issue, not age.  At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire.  The whole family was involved, but it needed to happen.

During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges.  The spring initiative read:

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary.  I voted yes, knowing that many of the most capable judges were still in their prime at 70+  

However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative.  Instead, in  the upcoming general election the following initiative will appear:

Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?  

Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like  the hide-the-ball tactics.  He joined others and challenged the language.   His word for the tactic?  "Deceitful."

Who had the final say on which language would be used?  Ironically, the Pennsylvania Supreme Court.  In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.  

October 20, 2016 in Cognitive Impairment, Current Affairs, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 19, 2016

Professor Kaplan on Religion and Advance Medical Directives

University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.

From the abstract: 

This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.

This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics.  Thank you, Dick.

October 19, 2016 in Advance Directives/End-of-Life, Ethical Issues, Health Care/Long Term Care, Religion, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 17, 2016

Will Increases to Minimum Wage Impact Seniors?

Arizona has two interesting initiatives on the 2016 ballot for the November 8th election.  One is Proposition 205, which would legalize recreational marijuana if passed; the other is Proposition 206 which would increase the state's minimum wage from $8.05 per hour to $10 per hour in 2017 (and incrementally thereafter to $12 by 2020), plus require employers to provide paid sick leave (40 hours annually for large employers and 24 hours annually for small employers). Guess which Prop is getting the lion's share of attention on media airwaves? Nonetheless, both measures are high profile and certainly the wage initiative should be carefully considered.  

Mark Young, who is president of the Arizona In-Home Care Association, and operates a home care company in Arizona, offers an interesting perspective on the potential impact of higher minimum wages in a column published recently on the Opinion page for the Prescott Daily Courier. He opens: 

He cites Seattle's increase of minimum wage to $15/hour as evidence of an corresponding increase for the average cost of in-home care to nearly $35 per hour, making such services "out of reach for many seniors."  He continues: 

Even more concerning is the potential unintended consequences of Prop 206: The emergence of an underground market which would place liability and risk on our most vulnerable community members. This could result in increased financial, physical, or even mental abuse by predators targeting seniors and disabled adults and children – a segment of our society already at risk.


As our senior population grows the demand for skilled caregivers has been increasing dramatically. If the cost to employ skilled caregivers goes up while the pool of available workers shrinks, many in-home care agencies will be forced to meet demand by hiring workers who are less expensive but also less experienced which could negatively impact overall quality of care.

The affordability argument for home care I understand, but I'm pretty darn skeptical of an argument that keeping the official minimum wage under $10 per hour protects against predatory behavior by home care workers. Nonetheless, it will be interesting to see how Arizonans vote on these two propositions, especially given the state's often libertarian take on conservative politics. At least one poll shows Arizonans favor the incremental increases under Prop 206 to $12 per hour.

October 17, 2016 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (3)

Monday, October 10, 2016

Update on 2015 Iowa Case, Raising Issue of "Consent" to Sexual Relations in Nursing Homes

In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease.  See here, here and here, for example.  The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a).   After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys --  the jury acquitted Henry Rayhons, then age 79.  The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.

The legal proceedings did not stop with the criminal case.  A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's  treating physician at the nursing home.  Separate counts named the nursing home itself on state law claims of vicarious liability.  Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case.  In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.  

Continue reading

October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Will New Federal Ban on Pre-Dispute "Binding" Arbitration Clauses in LTC Agreements Survive Likely Challenges?

My colleague Becky Morgan provided prompt links and important initial commentary for CMS's recently issued final regulations that are intended to "improve the quality of life, care, and services" in Long-Term Care (LTC) facilities.  As we start to digest the 700+ pages of changes and commentary, it seems clear the battle over a key section that bans pre-dispute binding arbitration agreements is already shaping up.  This rule, at 40 CFR Section 483.70(n), has an implementation date of November 28, 2016.

The regulatory ban on pre-dispute binding arbitration in covered facilities raises the question of "conflict" with the Federal Arbitration Act (FAA), 9 U.S.C. Section 1 et seq.   The 2012 per curium ruling by the Supreme Court in Marmet Health Care Center, Inc. v. Brown, shapes the issue, if not the result. 

CMS distinguishes Marmet and presents the rule change as based on authority granted under the Social Security Act to the Secretary of Health and Human Service to issue "such rules as may be necessary to the efficient administration of the functions of the Department," which necessarily includes supervision of all providers, including LTC providers, who "participate in the Medicare and Medicaid programs."  CMS points to the long history of regulatory authority over LTC including long-celebrated "patient's rights" legislation adopted in the late 1980s.  CMS further explains (at page 399 of the 700 page commentary to the new rules):

Based on the comments received in response to this rulemaking, we are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair because, among other things, it is almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. We believe that LTC residents should have a right to access the court system if a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary. . . . 


We recognize that an argument could be made that Medicare and Medicaid beneficiaries can assert in Court the FAA's saving clause if they believe that a pre-dispute arbitration agreement should not be enforced. However, the comments we have received have confirmed our conclusion that predispute arbitration clauses are, by their very nature, unconscionable. As one commenter noted, it is virtually impossible for a resident or their surrogate decision-maker to give fully informed or voluntary consent to such arbitration provisions. That same commenter 402 also noted that refusing to agree to the arbitration clause, in most cases, means that care will be denied.


Furthermore, Medicare and Medicaid beneficiaries are aged or disabled and ill. Many beneficiaries lack the resources to litigate a malpractice claim, much less an initial claim seeking to invalidate an arbitration clause. Rather than requiring Medicare and Medicaid beneficiaries to incur the additional fees, expense, and delay that would be the direct cost of opposing a motion to enforce arbitration, we have concluded that this is precisely the type of situation envisioned by the Congressional grant of authority contained in sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act authorizing the Secretary to establish "such other requirements relating to the health, safety, and well-being of residents or relating to the physical facilities thereof as the Secretary may find necessary.”

By coincidence, just hours before the final LTC rules issued by CMS, the Pennsylvania Supreme Court enforced pre-dispute arbitration agreements for nursing home residents in Taylor v. Extendicare Health Facilities (decided September 28, 2016).  

The LTC industry seems ready to fight, as reported by industry insiders at McKnight's News on September 29, 2016: 

Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.


“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.


LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.


“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.

Stay tuned -- but don't hold your breath as the next round is likely to take some time. My special thanks to Megan Armstrong, Class of 2018 at Dickinson Law, for sharing key links with me for our research on this important development. 


October 10, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, October 3, 2016

New York Case Provides Window Into Roles of Attorneys as Counsel and Guardian in End-of-Life Case

In the Matter of Jane Doe, a case pending in New York state courts for several years, involves tragic facts.  A 37-year old woman experienced cardiac arrest in 2003 following complications during delivery of her third child.  With a cascading series of events, "Jane Doe" suffered anoxic brain damage and spastic quadriparesis, and became dependent on a respirator and full time care in a nursing home's ventilator unit.  Her husband, John D., was initially appointed as her personal needs guardian, while a separate person, an attorney, was appointed property management guardian.  In 2012, John D initiated measures to remove his wife's life support; litigation ensued when other family members opposed the proposed withdrawal.  After more than a year of proceedings, John D. stepped down as special needs guardian and in 2012, the court appointed one attorney as legal counsel for Jane Doe, and a separate attorney as the new special needs guardian with authority under New York law to determine the patient's health care, including any decision to withdraw life supports.

In 2016, a New York Court held extensive hearings on the surrogate decision of the special needs guardian to withdraw life support for Jane Doe.  The court heard testimony from medical professionals, friends and relatives of Jane Doe, including those who recounted conversations with Jane, offered to show that she would not want life sustaining measures to be withdrawn. The testimony, summarized in the opinion, is wrenching.  Ultimately, on August 19, 2016, the court issued a detailed ruling, finding that the decision of the special guardian to withdraw life support was supported by the evidence. The court denied the petition of family members opposing termination of life support but also stayed its final order for 60 days to permit further appeals.

On one level, this is case is another window into the use of courts for end-of-life decision-making.  But the case also highlights the important roles potentially played by lawyers for the incapacitated person, including as appointed legal counsel for the incapacitated person and separately, as the surrogate decision maker.  The surrogate's experience as an elder law attorney was viewed by the court as important to her credentials.

Here are the court's reasons for accepting the surrogate's decision:

Continue reading

October 3, 2016 in Advance Directives/End-of-Life, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Friday, September 30, 2016

Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim

I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania.  A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.

In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support"  law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied.  N.J. filial support obligations are more limited than those affecting families under Pennsylvania law.  Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents.  See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question.  The disabled son was 29.

The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language.  At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.

Continue reading

September 30, 2016 in Ethical Issues, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 28, 2016

Attorney's Representation of 82-Year Old Woman on Slip & Fall Case Leads to Disciplinary Sanctions

I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?"  It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client.  The "family" is generally not the answer to "who is your client?," even if you represent more than one family member.  From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:

By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.

Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%. 

The case was settled, and Silva’s staff deposited the check into her operating account.  A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.

While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.

The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory.  Different accounts for different clients.  While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction.  The $64,000 question just got a whole lot more expensive for that lawyer. 

My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.



September 28, 2016 in Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 27, 2016

Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care

Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services.  That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right?  After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million

But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva.  As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA).  From the Office of Inspector General, Department of Health and Human Services press release:

It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.


The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."


OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.

The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace.  According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming."  For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."

September 27, 2016 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, September 26, 2016

Home Care Workers at the Very Heart of Debates about Overtime Pay and Minimum Wage

Home care workers have many different titles and roles, but a common problem for all is the rate of pay.  Many work long "block" shifts of 10 or more hours at a time.  Many are employed by agencies that charge clients $20+ per hour while paying the workers less than half that rate. Home care agencies typically offer no or minimal benefits.   At the same time, for families facing the prospect of care for elderly parents or grandparents, increasing the hourly rate and/or mandating overtime rates can quickly become unaffordable. Home care is often not covered by insurance, especially if the care is not deemed to be "medically necessary." 

The New York Times recently offered a portrait of the problems, beginning with evidence the average hourly rate for home care workers has actually gone down -- from a national median of $10.21 (adjusted for inflation) in 2005 to $10.11 in 2016: 

This helps explain why Patricia Walker, 55, a certified nursing assistant who works for a Tampa home care agency and provides care for two older men — and hasn’t received a raise in five years — must rely on $194 in food stamps each month.


“It helps me a lot, because I don’t have to wait for my paycheck to buy food,” she told me.


Still, working only 16 hours a week while hoping for more, at $10 an hour, means she can’t afford a place to live. “I would love to be able to put a key in my own door and know this is mine,” she said.

Instead, she pays friends $50 every other week to rent a room in their apartment.

Home care aides, mostly women and mostly of color, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million.

For more, read As Their Numbers Grow, Home Care Aides Are Stuck at $10.11.

September 26, 2016 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)

Friday, September 23, 2016

Planning: Mid-Atlantic Works-in-Progress Retreat Opportunity for Health Law Scholars

Professor Carl H. Coleman at Seton Hall Law School in Newark, New Jersey, sent us advance news about a works-in-progress retreat scheduled for February 10, 2017.  Professor Coleman explained:

Seton Hall Law School’s Center for Health & Pharmaceutical Law & Policy is pleased to announce the inaugural Mid-Atlantic Health Law Works-in-Progress Retreat, which will be held on February 10, 2017, at Seton Hall Law School in Newark, New Jersey.  The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting.  The retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the mid-Atlantic area.

The retreat will consist of an in-depth discussion of approximately 5-6 draft papers.  A designated commentator will first provide a 10-15 minute overview of each paper, as well as his or her reactions.  The author will then have 5 minutes to respond, following which all retreat participants will participate in a general discussion of the draft.

Persons interested in having their papers presented should submit a preliminary draft or, if that is not possible, a detailed abstract, no later than November 18 to Carl Coleman at, using the description "Mid-Atlantic Health Law Retreat" in the regarding line of the emailed submission.   Papers to be presented will be selected by December 9, and final drafts will be due on January 20.  Drafts will be made available to all participants on a password-protected website.

Contact Professor Coleman with any questions. This looks like a fabulous workshop opportunity. Thanks, Carl!

September 23, 2016 in Ethical Issues, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Thursday, September 22, 2016

Inspiring Conversations about Aging -- a Florida Example

Karen Miller, a lawyer and former administrative law judge from New York who has become a very good friend, recently shared with me reports about a long-time project of hers, to inspire direct dialogue between generations about aging.  As an engaged resident of a CCRC in Gainesville, Florida (Oak Hammock which is affiliated with the University of Florida), Karen and others in her community embody the notion of active, healthy, and realistic aging.  Karen knows that "aging in the right place" is a better goal than simply "aging in place."  The right place may or may not be the long-time family home.   

Over the course of three days in mid-September, Temple Shir Shalom and Oak Hammock hosted conversations on "Giving and Receiving Care" that were open to the public.  From the Gainesville-Sun coverage of the events:

[Rabbi Michael] Joseph said joking around with his wife about his forgetfulness becomes less funny, as he grows older. “It becomes a real anxiety, it becomes harder to talk about,” Joseph said. “Because I don’t really want to know the answer, part of me.”


Saturday’s festivities will address Joseph’s anxiety head-on. The Oak Hammock retirement community will serve as the backdrop to a lecture about age-related cognitive changes. The 3 p.m. non-clinical presentation by guest speaker Dr. Steven DeKoskey of the University of Florida's McKnight Brain Institute will take a look at what is and isn’t normal when aging.


[Karen] Miller said that as people age they may need help with numerous things, ranging from simple things like writing a check, to more complicated things, like making medical decisions. “There will come a time, unless you get hit by a car, where your faculties are not as sharp as they were at one time,” she said.


Concluding Sunday at the temple, the program will open its doors at 10:30 a.m. to a wider audience spanning at least three generations, Joseph said.

The combination of community hosts, professional caregivers, science-based speakers, and public round tables strikes me as an inspiring model for effective conversations about aging. Well done, Karen.

September 22, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Tuesday, September 20, 2016

Thinking about Consumer Protection, Families, and Older Clients in Banking

I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers.  Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.  

One of the practical lessons, however, is that each banking institution does it differently when responding to concerns.  For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question.  The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.

Along this line, I recently received news of a timely CLE program.  The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania.  The Pennsylvania Bankers Association is co-hosting the program.  

Speakers include:


Hon. Robin L. Wiessmann
Secretary, PA Department of Banking and Securities


Leonidas Pandeladis, Esq.
Chief Counsel, PA Department of Banking and Securities


Jeffrey P. Ehrlich, Esq.

Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC

The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess.

Related articles

September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 19, 2016

Upcoming Conference to Focus on Dispute Resolution in the Face of "Medical Futility"

On Friday, November 18, 2016, Mitchell Hamline School of Law and Children's Minnesota are hosting a one day seminar on "Ethics, Law and Futility" in Minneapolis.  The target audience is described as "Nurses, Physicians, Social Workers, Lawyers, Patient Advocates, Parents/Guardians or anyone interested in ethics, law and futility."  The premise is intriguing, as explained in conference promotion materials:

There is a knowledge gap between what is presumed as one’s ethical and legal obligations to patients during cases of futility and what actually their responsibility is. This conference will assist in clarifying these issues and provide the audience with tools for managing futility cases.

Speakers include: 

  • Thaddeus Pope, Director of the Health Law Institute at Mitchell Hamline School of Law, speaking on "When may you stop life-sustaining treatment without consent?  Leading Dispute Resolution Mechanisms for Medical Futility Conflicts.”

  • Emily Pryor Winston, Associate General Counsel at Children’s Hospitals and Clinics of Minnesota, on "Minnesota Law and Medical Futility Analysis."

  • Jack Schwartz, Adjunct Professor at the University of Maryland School of Law and Former Maryland Assistant Attorney General, on "The Ethics of Legal Risk.

For more, see the home page for the symposium, which provides registration materials.

September 19, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 11, 2016

"Come Hell or High Water" at the Movies

Over the weekend, I caught the recently released movie, Hell or High Water. Both "contract law" and "elder law" figure into the plot.  Warning: Spoilers ahead -- so don't keep reading if you don't want to know.

The timeless and yet still "modern" plot -- with sons trying to save the family homestead from the bank -- has a few good West Texas twists (although the movie was mostly filmed in my old stomping grounds of New Mexico).  I enjoyed the play on words with the title of the movie from a legal perspective.  The bank's "reverse mortgage" on the homestead has a payoff clause that bars any excuses for nonpayment, such as Acts of God or other hardships.  In legal circles such clauses have are called "come hell or high water" terms, rejecting any "force majeur" excuses for late payments.  So the brothers are up against the clock. Can they steal enough from the very bank conglomerate that made the loan in order for them to get the mortgage paid off by the deadline?  Good character actors abound, including two waitresses who steal the scenes in small town diners and Jeff Bridges at the other end of a Texas journey he began 45 years ago with The Last Picture Show.

The reverse mortgage is the elder law part of the plot.  The movie hints the aging mother was loaned just $25,000 on the homestead (where oil may be found) -- enough to be difficult to pay off (especially with taxes and fees), but not enough money to truly save her from her debts.   While the plot stretches the realities of reverse mortgages, in truth such mortgages are typically very high cost loans, and are not easily refinanced. 

September 11, 2016 in Consumer Information, Current Affairs, Ethical Issues, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, September 9, 2016

The Surprisingly Complex Law of Descansos (a/k/a Roadside Memorials)

When I was growing up in Arizona, my father and I spent a lot of time on the road, and we would often comment on the small white crosses found along the highways marking the locations of fatal car accidents.  Perhaps this conversation was a bit morbid in retrospect, but the presence of the crosses made an impression on me, demonstrating just how significant a momentary lapse of awareness can be for drivers operating at high speeds.  I'm not sure when those state-sponsored memorials ended, but you still sometimes see markers installed by families. They can vary from simple to elaborate. In the Southwest generally, they are sometimes known as "descansos," a Spanish word for "resting places," and there is a long tradition behind them.  

More recently in Arizona, the tradition has been challenged, with state authorities aggressively removing the impromptu memorials as "safety hazards" in early 2016, citing long-standing laws prohibiting such markers.  An Arizona newspaper chronicled the issues earlier in the year: 

For the past 15 years, Pete Rios would say a special silent prayer as he drove past a large white cross that sat on top of a rocky hill just alongside the road on his way to work.


As a little boy, he said, he was told “that’s what you do to show respect” for the many memorial sites that line Arizona highways, marking the deaths of loved ones.


One in particular was special to the Pinal County supervisor.


It bore the initials of his sister, Carmen Rios, who had been killed near that spot by a drunken driver in 2000. It sat surrounded by a 3-foot angel, faded in color from years of sun beating down on it, and ceramic vases that held new flowers with every passing holiday and changing of seasons.


Last week, the memorial disappeared.

When dozens of crosses along Arizona highways disappeared suddenly, families protested.  They countered the "safety" argument, pointing to the absence of any evidence that the small crosses caused drivers to stop or otherwise change their course of driving.  The Arizona Department of Transportation offered "alternatives" as memorials, suggesting families could participate in Arizona's "adopt a highway" program.   

The grassroots advocacy of families took hold, and recently the Arizona Department of Transportation announced a new policy:

Recognizing the need of families to grieve in different ways for those killed in crashes, the Arizona Department of Transportation has established a policy allowing memorial markers along state-maintained highways in a way that minimizes risks for motorists, families and ADOT personnel.


Developed with input from community members, the policy specifies a maximum size and establishes standards for materials and placement so markers present less chance of distracting passing drivers or damaging vehicles leaving the roadway....


  • Size and materials: A marker may be up to 30 inches high and 18 inches wide, and the wood or plastic/composite material components used to create it may be up to 2 inches thick and 4 inches wide. It may include a plaque up to 4 inches by 4 inches and up to 1/16 of an inch thick. It may be anchored up to 12 inches in the ground, but not in concrete or metal footings.
  • Placement: In consultation with ADOT officials, families will place markers as close as possible to the outer edge of the highway right of way. Markers may only be placed in front of developed property if the property owner gives written permission to the family.

It turns out that states across the nation have different laws and policies governing roadside memorials.  And, I guess I'm not entirely surprised to discover law review articles on this very subject. Florida Coastal Associate Law Professor Amanda Reid has two very interesting pieces, including "Place, Meaning and the Visual Argument of the Roadside Cross," published in 2015 in the Savannah Law Review.

September 9, 2016 in Current Affairs, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations, Travel | Permalink | Comments (0)

Tuesday, August 30, 2016

One Practitioner's Perspectives on "The Practice of Elder Law"

Stuart Bear, a practicing attorney and member of the Minnesota State Bar Association's Elder Law Section, has written an interesting first-person account of "The Practice of Elder Law" for a 2016 issue of the Mitchell-Hamline Law Review.  It turns out the 2016 piece is an updated version of a similar article he wrote for the William Mitchell Law Review in 2002, with the same title.

In both versions Bear begins with a narrative about a family member's call to ask him legal advice on how to handle care issues following an emergency hospital admission for the caller's mother. Many of the events Bear relates will resonate, both with the public (especially those of a certain age) and lawyers.

At the same time, I find that some of Bear's words -- in both versions -- could be a springboard for a broader discussion with law students and elder law specialists.  For example, he chooses to label the family member initiating the contact as "Responsible Daughter," and he refers to other siblings as "responsible sons."  What is the meaning behind this phrase?  Is he referring to "morally responsible," "financially responsible," or just generically a "good" person?  

Further, in both versions, he offers an important discussion of how he handles potential conflict of interest issues in representing the elder parent where offspring are involved in client meetings and decisions.  In the 2002 version, Mr. Bear writes about alternative choices in identifying his client:

This rule [referring to Rule 1.7 of the ABA Rules of Professional Conduct as adopted in Minnesota] is clear that should I choose Mom as my client; it is she whom I serve and no other family member. I take my marching orders based upon Mom’s goals and objectives, serving her sole interests.


Suppose, however, that Mom is not so definitive in articulating her goals and objectives. It may be possible for me to represent the entire family, in light of rule 2.2 of the Minnesota Rules of Professional Conduct, which addresses the lawyer as intermediary.

In the more recent 2016 version of the essay, which is the version I first encountered on Westlaw, Mr. Bear cites a different rule for his authority to represent "the family." He points to Rule 1.14 on representation of a client with "diminished capacity."  He writes:

Suppose, however, that Mom was not so definitive in articulating her goals and objectives. It may be possible for me to represent the entire family, in light of Rule 1.14 of the Minnesota Rules of Professional Conduct, which addresses clients with diminished capacity. A comment to the rule provides in pertinent part:
The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and . . . must look to the client, and not family members, to make decisions on the client's behalf.
In the situation involving Mom and Responsible Daughter, and reading the conflict of interest rule together with Rule 1.14, I may act as the lawyer for this situation, provided that no conflict of interest develops
Perhaps the question is whether either rule, 1.7 or 1.14, clearly authorizes the concept of "family representation" where the older client has capacity issues. While many attorneys, including elder law attorneys, do take the position this approach is appropriate, others would take the position that the daughter is acting in the role of agent or alternative decision-maker for the mother, and thus the mother is always the real party in interest, not the daughter. Neither approach eliminates the potential for conflict of interest issues for the attorney. Either way, I think the question of client identity is key to most representational roles for elder law attorneys, especially in the context of family members serving as de facto agents for their loved ones. Stuart Bear's 2002 and 2016 essays should be good food for additional thought and analysis.
Editing Note:  The above Blog post was edited to refer to the correct name for the Mitchell-Hamline Law Review (rather than the "Marshall-Hamline Law Review").  Our thanks to readers for catching my error! KCP

August 30, 2016 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (1)

Friday, August 26, 2016

The CNA Conundrum: Background Checks, Continuing Education & Licensure

The long-term care industry depends hugely on the services of "nursing assistants," also known as NAs, who provide basic but important care for residents or patients under the direction of nursing staff (who, in turn, are usually Licensed Practical Nurses or Registered Nurses). As the U.S.Department of Labor describes, NAs typically perform duties such as changing linens, feeding, bathing, dressing, and grooming of individuals. They may also transfer or transport residents and patients. Employers may use other job titles for NAs, such as nursing care attendants, nursing aides, and nursing attendants. However, the Department of Labor makes a distinction between NAs and other key players in long-term care, including "home health aides," "orderlies," "personal care aides" and "psychiatric aides." 

According to DOL statistics, the top employers of NAs include skilled nursing facilities (37% of NAs), continuing care retirement communities and assisted living facilities (together employing some 18% of NAs), and hospitals and home care agencies, which each employ about 6% of the NA workforce.  

For many years, states have offered licensing for nursing assistants.  The designation of CNA or "certified nursing assistant" meant that the nursing assistant had satisfied a minimum educational standard and had successfully passed a state exam.  As another key protection for vulnerable consumers, CNAs had to pass background checks, involving fingerprints and criminal history searches.

In Arizona, however, now I'm hearing a new label:  LNAs or Licensed Nursing Assistants.  The Arizona Board of Nursing continues to license CNAs, but now it is offers the designation of Licensed Nursing Assistants. What's the difference?  Frankly, not much, at least in terms of skill levels. Then why the change?

In Arizona, CNAs and LNAs have the same educational requirements, and must pass the same test and satisfy the same work credits. But, as of July 1, 2016, individuals seeking the LNA designation will be required to pay the state a fee to cover their mandatory background checks, including fingerprinting.  CNAs, however, will no longer be required to undergo background checks or fingerprinting.  

What is this about? Arizona is trying to save money.  It seems that state and federal laws prohibit state authorities from mandating that CNA candidates cover the cost for their own background checks.  In other words, if the candidate showed financial need in the application process, the state was required to pick up the costs for any background checks. Let's remember that the average wages of CNAs are relatively low -- the national mean is less than $30,000 per year. Presumably that is the reason behind the older laws limiting how much states can charge CNA applicants for their own background checks. By creating a new designation, LNA, Arizona takes the position it avoids the federal restriction.

But, what about the public?  Will the public understand that CNAs licensed after July 1, 2016 will not be subject to fingerprinting and background checks?   Responsible employers would, presumably, require such checks or limit their hires to LNAs.   At least, let's hope so.

I also learned that apparently Arizona does not require "continuing" education for either CNAs or LNAs.  (Again, you would hope that responsible employers would either provide or require such education.)  Arizona used to require a minimum of 120 hours every 2 years of what are, in essence, "job credits" -- i.e., proof of employment in an NA position -- to maintain the CNA license.  Recently, however, Arizona diluted that requirement to just 8 hours every two years for both CNAs and LNAs.  

Arizona does have a useful website where current or prospective employers, including families, can check the licensing status of CNAs or LNAs. The website is searchable by name or license number, and shows whether an applicant has failed the entrance exam, or has withdrawn an application or lost the license.  

Are other states creating this LNA designation as a "workaround" (loophole?) for financing background checks for CNAs?  Let us know!  

August 26, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 25, 2016

Washington Post: Legal Counsel for the Elderly Is Part of One Woman's Story

The Washington Post has a fascinating piece about Wanda Witter's decades-long battle with the Social Security Administration. At the age of 80, Wanda's story appears to be one of success, after many years of living in shelters and on the streets of D.C..  

At the shelters all those years, Witter tried to get someone to listen to her. She explained at different offices providing homeless services that those suitcases contained the evidence. She was owed money, lots of money, and she could prove it.


Witter is not a particularly warm or outgoing person. She isn’t rude, just direct. And suspicious of just about everyone. And obsessed with Social Security.


“They kept sending me to mental counselors. I wasn’t crazy. I wasn’t mentally ill,” she said.

With the help of the Washington Legal Clinic for the Homeless, Legal Counsel for the Elderly (LCE) and a dedicated, patient and persistent social worker, Julie Turner, it appears that Ms. Witter is now in her own apartment and will receive some $100,000 in back Social Security payments.  

For the full story, read "'I Wasn't Crazy.' A Homeless Woman's Long War to Prove the Feds Owe Her $100,000."  

August 25, 2016 in Ethical Issues, Federal Statutes/Regulations, Housing, Legal Practice/Practice Management, Social Security | Permalink | Comments (0)