Thursday, August 27, 2015

Justice in Aging: Analyzing Training of Workers Who Assist People with Dementia

Justice in Aging offers  a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.

The papers include:  

To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home.  Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards.  The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel. 

If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.    


August 27, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 26, 2015

LegalZoom Touts "Legal Advice"

Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents.  LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies. 

Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning.  Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice."  Here's a link to one recent example.   

The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following: 

"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit" 

Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state.  The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade CommissionLegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers. 

August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 25, 2015

Subtle Messages in Webinar on "Managing" the Aging Academic Workforce?

An interesting approach to the topic of aging faculties in higher education recently came across my virtual desk in the form of an advertisement for an upcoming webinar (with an interesting price tag to match).  The title of the program is "Managing and Supporting an Aging Workforce," offered by Academic Impressions (a company I'm not familiar with) on November 15, 2015 from 1 to 2:30 p.m. EST. 

The brochure advises "Given the nature of this topic, this online training is appropriate for human resources professionals, department chairs, deans, and senior administrators who deal with faculty and personnel issues."

Here's the description, which strikes me as charting a careful approach to helping (encouraging?) older faculty members make the decision to retire, without running afoul of age discrimination laws.

Experienced academic and administrative employees are the pillars for many institutions in higher education. However, with many faculty and staff members working well into their 60’s and 70’s, administrators face the challenge of supporting an aging workforce while having the appropriate policies and procedures in place.

Learn how to better balance the interests of your employees with the needs of your institution. This webcast will cover:

  • Laws governing discrimination and how to remain in compliance
  • Appropriate steps for dealing with diminishing capabilities
  • Performance reviews, policies, and procedures

August 25, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Retirement, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Monday, August 24, 2015

Must Courts Honor Alleged Incapacitated Person's Nominee for Guardian?

In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians.  The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator. 

On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians.  In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference. 

Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian.  While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice.  Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .

Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian. 

August 24, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Tuesday, August 18, 2015

Federal Court Applies "Doctrine of Reasonable Expectations" to Long-Term Care Insurance Policy

An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy.   The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California.   UPDATE: link to Order dated August 14, 2015. 

In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years.  Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE).  With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy.  The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.  

Insurers understandably prefer not to pay claims if they can avoid doing so.  In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit." 

On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.

Continue reading

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

Sunday, August 16, 2015

2015 National Aging & Law Conference

The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section.  The website describes the conference

The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country.  The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.

The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and  legal service development and delivery.  The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them. 

The agenda is available here. To register, click here.  Early bird registration ends August 28, 2015.


August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)

Friday, August 14, 2015

Should "Springing" Powers of Attorney (Once Again) Be the Norm?

In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:

Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.

For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.

August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 13, 2015

North Carolina Appellate Court Ruling Permits "Membership Fee" in Condo-Continuing Care Contracts

Earlier this summer, a North Carolina appellate court reversed a trial court's finding that "membership fees" tied to condominium purchases in a retirement community were "unconscionable." In a class action suit filed by residents against Cedars of Chapel Hill LLC., this summer's ruling permits the defendant company to continue to market and sell its retirement condos as "fee simple" units  in combination with "continuing care member" contracts, although the court also remanded for a jury trial before the lower court.

In a highly technical ruling that examined state real estate transfer fee rules, the North Carolina's  marketable title act, and arguments under the common law about  unequal bargaining power, the appellate court rejected summary judgment in favor of the residents.  The court addressed allegations of both procedural and substantive unconscionability in the contracting process.  The court explained in part:

Substantive unconscionability “refers to harsh, one-sided, and oppressive contract terms.” … The terms must be “so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.” Brenner v. Little Red Sch. House Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981). Plaintiffs, in raising this issue, contended that the fees in question were “exorbitantly high,” that the documents at issue were “decidedly one-sided in favor of the Company,” and that plaintiffs lacked “ability ... to negotiate any of the terms of the covenants and conditions in question in this case.” Plaintiffs further noted that the market for CCRCs in Chapel Hill is very small, leaving few alternatives.


…[W]e find plaintiffs' arguments unavailing. We recently held that “the times in which consumer contracts were anything other than adhesive are long past.” Torrence v. Nationwide Budget Fin., ––– N.C.App. ––––, ––––, 753 S.E.2d 802, 812 (quoting AT&T Mobility LLC v. Concepcion, –––U.S. ––––, ––––, 131 S.Ct. 1740, 1750, 179 L.Ed.2d 742, 755 (2011)), review denied, cert. denied, 367 N.C. 505, 759 S.E.2d 88 (2014). The mere fact that plaintiffs lacked the ability to negotiate contract terms does not create substantive unconscionability, nor does the fact that defendants were among the only providers of CCRC facilities. We hold that plaintiffs did not adequately demonstrate unconscionability as a matter of law, and that a genuine issue of material fact existed as to unconscionability, which precluded summary judgment.

For more of this ruling, see Wilner v. Cedars of Chapel Hill LLC., 773 S.E 2d. 333 (N.C. Ct. App., 2015).

For reactions from the parties' representatives, see NC Appeals Court Ruling Favors Cedars of Chapel Hill Condo Fees. 

For an additional, interesting discussion of business perspectives on retirement developer control, written prior to the most recent appellate court ruling, see Two Pitfalls of Leveraging Developer Influence, from a North Carolina law firm blog.

This case -- revealing the range of complexities in contracts for senior housing and services --  is another example of why I added "Contracts" law to my teaching package, with elder law!

August 13, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 12, 2015

Borchard Center Announces 2015-16 "Law and Aging Fellows"

Mary Jane Ciccarello, co-director of the Borchard  Center on Law and Aging, recently sent us the latest news on the fellowships announced for the 2015-16 grant year.  There is strong competition for these key sources of funding for recent law school graduates to engage in new or expanded initiatives in law and aging.  The new fellows include: 

  • Krista Granen, a 2015 University of California-Hastings graduate, who will partner with Bay Area Legal Aid in San Francisco to implement a multi-faceted project to provide direct services, establish a mobile “pop-up” clinic to accommodate seniors’ physical and capacity based impairments, and promulgate resource materials in the intersectional areas of consumer protection and Social Security. Her project will promote economic security for low-income seniors residing in Santa Clara County, a county that simultaneously experiences extreme class stratification and a dearth of necessary legal services. 
  • Jennifer Kye, a 2014 UVA graduate, at Community Legal Services of Philadelphia, who will implement a three-part project focused on increasing vulnerable seniors’ access to Medicaid home and community-based services. Her project will include: (1) systemic advocacy at the state level to expand the availability and improve the delivery of these critically needed home-based services; (2) development of a self-help manual that will allow seniors to advocate for themselves in accessing services in their own homes; and (3) direct representation of low-income older adults in obtaining and keeping home-based services and supports.


  • Stephanie Ridella Vittandsm, a 2014 Chicago-Kent graduate, who will continue her work at the Chicago Center for Disability and Elder Law, advocating for low-income seniors in housing matters, including eviction defense, public housing voucher termination defense, and representing seniors evicting tenants or family members from their homes. By prioritizing time-sensitive housing cases and conducting expedited intake interviews, she can continue to intervene in emergency housing cases.  She will continue to administer the Pro Se Guardianship Help Desk, which provides assistance to petitioners seeking guardianship over family members.   


  • Shana Wynn, a 22015 graduate of North Carolina Central Law School, who joins Justice in Aging (formerly the National Senior Citizens Law Center) and the Neighborhood Legal Services Program (NLSP) in Washington, DC.  Ms. Wynn will work closely with Justice in Aging attorneys to formulate policy recommendations to improve the Social Security Administration’s (SSA) representative payee program for Supplemental Security Income (SSI) recipients and Social Security beneficiaries. Ms. Wynn will partner with NLSP to provide pro bono services to low-income seniors and secure access to healthcare and public benefits such as SSI. The primary goal of the project is to identify and address problems relating to SSA’s representative payee program as a means to better protect our most vulnerable seniors from misuse of their modest incomes.
Congratulations to these hard working Fellows.  For law students or recent graduates thinking about applying for a future Borchard Law and Aging Fellowship grant, a reminder that the annual deadline is in mid-April.  Start your planning now!

August 12, 2015 in Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (1)

Tuesday, August 11, 2015

Private Law Firms Pursuing State Suits Against Nursing Homes, Hired by AGs

Avenging angels or unholy alliance? A lawsuit filed by the New Mexico Attorney General in December 2014 against Preferred Care Partners Management Group, a large, privately held management company operating nursing homes in New Mexico and nationally, raises interesting questions about whether AGs should be teaming with private lawyers to pursue cases of alleged malpractice, abuse or fraud affecting consumers.  The  Plano, Texas-based defendant asserts that "lobbying" of state attorney generals by private firms to pursue questionable claims is improper, pointing to campaign contributions paid by law firms or individual lawyers, as well as contingent fee arrangements that defendants argue reduce the States' accountability.

The current New Mexico AG has defended his state's relationship with the Washington D.C. law firm of Cohen Milstein.  According to the Santa Fe New Mexican:

Current Attorney General Hector Balderas blasted back at the company through a spokesman. “Bilking taxpayers for inadequate care and denying helpless and vulnerable residents basic services will not be tolerated,” he said. “Our office will continue to aggressively protect New Mexico’s taxpayers and our most vulnerable populations.”

Currently, the New Mexico case is in federal court, following the defendant's removal from the original filing in state court.   The law suit -- and the issue of private/public partnerships in pursuing claims on behalf of consumers and/or taxpayers --  is generating a lot of attention in the business world. Recent coverage includes linked news stories by the New York Times, the Albuquerque Journal, and McKnight's LTC News.

August 11, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Monday, August 10, 2015

Will "Single Seniors" Change the Face of Long-Term Living and Supports?

The Public Policy Institute (PPI) of California recently profiled demographic changes likely to affect that state in coming decades, including the impact of a projected increase, to 20%, of the proportion of the population aged 65+.  One especially interesting component is the impact of seniors who are likely to be "single," especially those without the assistance of  children, spouses, or other close family members, a trend that seems likely to be true nationwide. From PPI's report (minus charts and footnotes):

Family structures in this age group will also change considerably—in particular, marital status will look quite different among seniors in 2030 than it does today.... The fastest projected rates of growth are among the divorced/separated and never married groups. Between 2012 and 2030, the number of married people over age 65 will increase by 75 percent—but the number who are divorced or separated will increase by 115 percent, and the number who are never married will increase by 210 percent....


Another significant change will be in the number of seniors who have children. Those who have never been married are much less likely to have children than those who have been married at some point. As a result, seniors in the future will be more likely to be childless than those today.... In 2012, just 12 percent of 75-year-old women had no children. We project that by 2030, nearly 20 percent will be childless. Since we know that adult children often provide care for their senior parents, these projections suggest that alternative non-family sources of care will become more common in the future.

Thus, just as we're making noise about supporting seniors' preference to "age at home," we may be over-assuming that family members will be available to provide key care without direct cost to the states.  Hmmm.  That's problematic, right?

More from the California PPI report, including some conclusions: 

California's senior population will grow rapidly over the next two decades, increasing by an estimated 87 percent, or four million people.  This population will be more diverse and less likely to be married or have children than senior are today.  The policy implications of an aging population are wide-ranging.  We estimate that about one million seniors will have some difficulties with self-care, and that more than 100,000 will require nursing home care. To ensure nursing home populations do not increase beyond this number, the state will need to pursue policies that provide resources to allow more people to age in their own homes....


The [California In-Home Service & Supports] IHSS program provides resources for seniors to hire workers, including family members, to provide support with personal care, household work, and errands. One benefit of hiring family members is that they may provide more culturally competent care. Medi-Cal is already the primary payer for nursing home residents, and the state could potentially save money by providing more home- and community-based services that support people as they age, helping to keep them out of institutions. Finally, the projected growth in nursing home residents and in seniors with self-care limitations will require a larger health care workforce. California’s community college system will be a critical resource in training qualified workers focused on the senior population.

The San Diego Union-Tribune follows up on this theme in California Will Have More Seniors Living Alone, by Joshua Stewart.

August 10, 2015 in Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Retirement, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, August 7, 2015

Pennsylvania Names Nursing Home "Quality of Care" Task Force

In the wake of devastating reports about poor accountability following inspections of nursing homes in Pennsylvania under a previous governor, plus a new civil lawsuit filed by the Pennsylvania Attorney General's office, the current Pennsylvania Secretary of Health has announced a state task force to study certain issues. 

According to the state press release, the task force "will be charged with identifying ways the department can advance quality improvement in Pennsylvania's long-term care facilities. The goal is to review current regulations and identify areas that the department may improve to ensure that nursing homes are operating at the highest level regarding the quality and safety of their residents."'

The Secretary's office indicates that in addition to "members of the Governor's Office, the secretaries of the Pennsylvania departments of Aging, Human Services, and State," appointed task force members include:

Jaqueline Zinn, PhD - Temple University (Business School)
Mary Naylor, PhD, FAAN, RN - University of Pennsylvania (Nursing, Gerontology)
Steven Handler, MD - University of Pittsburgh (Medical School, Biometric Informatics)
Rachel Werner, MD, PhD - University of Pennsylvania (Medical School, Quality of Care)
Dana Mukamel, PhD – University of California, Irvine (Public Health, Quality of Care)
David Grabowski PhD - Harvard University (Medical School, Health Care Policy)
Barbara Bowers RN, PhD, FAAN - University of Wisconsin (Institute of Aging, Long Term Care)
Pennsylvania State Senator Pat Vance 
Pennsylvania State Representative Mathew Baker

On the positive side, it is good to see non-Pennsylvanians appointed to the team, all with excellent credentials.  Perhaps on the less positive side, it seems to be a very large team, made up mostly of very prominent but busy "volunteers," two factors which in my experience can reduce efficiency. 

For news accounts of the potential political factors that may be play in this recent history, see here and related articles linked below. 

August 7, 2015 in Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Thursday, August 6, 2015

NPR: Knowing How Doctors Die Can Change Others' Decisions

From a recent NPR piece on Knowing How Doctors Die Can Change End-of-Life Discussions:

Dr. Kendra Fleagle Gorlitsky recalls the anguish she felt performing CPR on elderly, terminally ill patients. It looks nothing like what we see on TV. In real life, ribs often break and few survive the ordeal.


"I felt like I was beating up people at the end of their life," she says. "I would be doing the CPR with tears coming down sometimes, and saying, 'I'm sorry, I'm sorry, goodbye.' Because I knew that it very likely not going to be successful. It just seemed a terrible way to end someone's life."


Gorlitsky now teaches medicine at the University of Southern California and says these early clinical experiences have stayed with her. Gorlitsky wants something different for herself and for her loved ones. And most other doctors do too: A Stanford University study shows almost 90 percent of doctors would forgo resuscitation and aggressive treatment if facing a terminal illness.

This selection also reminded me about an important essay from a few  years ago, How Doctors Die, by Dr. Ken Murray.  Hat tip to my Dickinson Law colleague Professor Laurel Terry for sending me this NPR piece.  

August 6, 2015 in Advance Directives/End-of-Life, Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, August 5, 2015

PBS News Hour: Why Foreign Retirees Are Flocking to Mexico

In recent weeks, I've been doing background research on "cross-border retirement" issues and therefore I was interested to read that ElderLawGuy Jeffrey Marshall's brother has retired to Mexico and "loves it." 

For some, the reasons may include comparative costs for a range of services, including support for "independent" living, or more skilled care, as documented by the PBS News Hour program on "Why Foreign Retirees Are Flocking to Mexico." The program interviews retirees in central Mexican communities near Lake Chapala.  The program compares "average cost for independent living" in U.S. retirement communities of "about $2,500 per month, with one Mexican community's prices for "rent, all utilities, connections for internet, television ... plus three meals a day" at "just a little over $1,000 a month." 

But, as the program touches on (only briefly), Medicare benefits don't apply in Mexico (although, perhaps they should?).  And there are also important questions about reciprocity in care for Mexican retirees who may have spent many working years in the U.S.

August 5, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement | Permalink | Comments (0)

Monday, August 3, 2015

Arizona Law Seeks Greater Accountability to Consumers for Home Care Companies

The Arizona Republic recently reported on Arizona legislation affecting home care agencies that will become effective in 2015, after a similar bill was vetoed in 2014 by a previous governor. According to news reports, the new law requires agencies to disclose to consumers whether they do background checks on employees, what type of training they use for employees, the costs of services and their hiring and firing practices.  

In my experience, such a "disclosure" focus is different than setting minimum substantive standards for home care, and puts a great deal of responsibility for evaluation of  "disclosed" information on consumers, who when it comes to long-term care, may already be under stress. 

From "New Arizona Law Requires Caregivers to Be More Transparent:"

"We want to help the consumer understand better and make an educated decision," said Mark Young, president of the Arizona In-Home Care Association (AZNHA) who helped press for passage of the bill. "A lot of times, clients get in crisis mode when they need to make these decisions because they don't know about the industry."


The bill, sponsored by Sen. Nancy Barto, R-Phoenix, passed unanimously in the Senate and by a 51-8 margin in the House. Gov. Doug Ducey signed the bill into law April 1.


Home-care service owners could be charged with a misdemeanor if their company does not comply with the new regulations, the attorney general's office said. But the law does not apply to volunteer caregivers and home-care service organizations already licensed by the state or federal government.

August 3, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Thursday, July 30, 2015

Hospital "Observation Status" Medicare Bill Goes to President Obama for Signature

The legislation carrying the name Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act, that has now passed both the House and Senate, goes to President Obama for signature. If signed by the president, it will still be another year before its official effective date.

Sadly, it doesn't actually fix the problem for the patients with the fact that hospitals frequently attempt to hold patients on a fictional "observation only" status.  Money is  still the issue. Hospitals want to avoid harsh potential Medicare penalties associated with readmissions of "admitted" patients.  At the same time, the lack of "admitted status" reduces the ability of patients to seek Medicare coverage for rehabilitation care post-hospitalization.  But now the patients get better "notice" of their status -- and the potential for it to affect Medicare coverage and therefor out-of-pocket expense for the patients.

ElderLawGuy Jeff Marshall has posted a good blog review of the new law, supplementing his earlier coverage of the problems.  See his Observation Status Bill Heads to President's Desk

July 30, 2015 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

California Lawsuit Over Alzhemier's Research Reveals Core University Funding Battle

As detailed in new stories in Southern California media, an important suit by University of California San Diego (UCSD) against University of Southern California (USC) highlights a battle between public and private research enterprises.  Control over millions of dollars is stake for Alzheimer's-related research.  From the San Diego Union-Tribune in a Sunday feature article by Larry Gordon, Gary Robbins and Bradley Fikes:

In the lawsuit, U.C. San Diego alleges that USC, [Alzheimer's researcher Paul] Aisen and eight colleagues conspired to take research data involving more than 1,000 patients and other assets, including an estimated $100 million in federal and private funding to a new Alzheimer's study center in the San Diego Area.  Aisen and USC deny any wrongdoing and contend that UC San Diego is trying to inhibit the freedom to move jobs and is threatening the data's security.


A Superior Court judge in San Diego last week denied USC's request to block UC San Diego's access to that data.


Richard Seligman, the associate vice president for research administration at Caltech who has more than four decades of experience dealing with grants, said he had never heard of such a lawsuit even though competition for grants and noted faculty has gotten more fierce.

Stakeholders interested in the outcome of the research are reported to be taking note of the suit, with Mary Carrillo, the chief science officer for the Alzheimer's Association quoted as saying the association wants a "speedy resolution" of the lawsuit to keep research going forward. 

Left in an uncomfortable middle ground are the National Institutes of Health and its subsidiary National Institute on Aging, which provides about $11 million per year to the UC Alzheimer's Center.  While confirming that UC San Diego still holds that grant, officials at those agencies said they must approve whether funding like that stays put or moves to another school with a principal investigator like Aisen.

For additional background on the lawsuit, see a related Los Angeles Times piece here.  Reporters from the Los Angeles Times and the San Diego Union-Tribune have collaborated on these stories.

On Friday, July 24, a California trial court ruled that the key research data must be returned to UCSD and therefore does not go "with" the faculty member, Aisen, recruited away from San Diego by USC.  Details here. 

As further evidence of the battle for primacy in southern California medical research, USC and UCSD have each courted the La Jolla Institute for Allergy and Immunology, with University of California-San Diego energing as the winning suitor for "affiliation."  Details here

July 30, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science, State Cases | Permalink | Comments (0)

Monday, July 27, 2015

Law Reform: A Proposed Remedy for "Deeply Toxic" Damage to Higher Ed Caused by Abolition of Mandatory Retirement

Bentley University Professors  Beverley Earle and Marianne Delbo Kulow have a nicely provocative article in the Spring 2015 issue of the Southern California Interdisciplinary Law Journal, titled The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair.  From the introduction:

There are very few positions that offer the level of protection that tenure does. One such position is a federal judgeship, which is distinguishable because of the very public nature of the work. If a judge performs inadequately, community backlash may quickly develop that could usher in a publicly coerced retirement. For example, a state judge, who recently gave a lenient sentence to a convicted rapist of a minor who committed suicide, has announced his retirement following pubic outrage.Tenured faculty members, unlike judges, labor in the relative isolation of the classroom, where feedback comes at the end of the semester and then only via student evaluations. This creates the first of two problems for higher education in the United States stemming from the abolition of mandatory retirement: the difficulty of removing a tenured professor for poor performance.


In most universities, only egregiously poor performance by a tenured professor is flagged for termination; outdated, boring, or barely adequate, teaching may not sufficiently stand out to warrant a more intense review.  There is also a slow feedback loopdue to minimal, if any, post-tenure peer classroom evaluations and skepticism about student evaluations of teaching. Therefore, often many semesters pass before there is sufficient evidence to persuade a professor or her superiors that the tenured professor's employment status should be reevaluated. Inadequacies in scholarship can be even more difficult to discern, given the common time lag between research and publication, as well as the variations between disciplines in frequency, length, and format of publications.


The second distinct challenge faced by higher education caused by the coupling of the abolition of mandatory retirement with the institution of tenure is the prospect of stagnant departments: no new faculty may be hired because there are no vacancies....

The authors' proposed reforms include "expiration" of tenure for professors reaching age 70, while permitting continued employment opportunities on the same evaluative standards as non-tenured faculty. 

July 27, 2015 in Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Retirement, Statistics | Permalink | Comments (0)

Friday, July 24, 2015

Huguette Clark Family Foundation Announces Grant for Study of Elder Exploitation

From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:

The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.


“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”

The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades."  Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.

July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)

From SSRN: "Abuse of Elders with Mental Illness" by Prof. James T.R. Jones

Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN.  In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age.  This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:

Elder abuse is a major international problem, and scandal.  It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it.  Elder abuse occurs in a variety of ways.  It can be physical abuse due to either active injury or passive neglect.  It can be psychological abuse through fear and intimidation.  It can be financial abuse due to theft or fraud.  Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives.  Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.

While all elders can be abused, those with mental illness are particularly vulnerable.  This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia.  Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.

This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse.  It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.

The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.   


July 24, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)