Friday, August 5, 2016
Earlier in the week, I shared the feature news story on "avoidable deaths" in Pennsylvania long-term care, often shown to be linked to inadequate staffing (whether in numbers or training, or both). The article began with a fall of a man while apparently unattended, and also identified residents "choking" on food as another documented risk associated with staffing and supervision.
But other senior care communities in the country may have their own unique complications. South Carolina has reported its first apparent "alligator attack," sadly connected to the death of a 90-year-old woman, who was earlier reported missing from her assisted living community. For more, read the Post-Courier report from July 29, 2016.
Wednesday, August 3, 2016
Pennsylvania attorney Douglas Roeder, who often served as a visiting attorney for my former Elder Protection Clinic, shared with us a detailed Penn Live news article on what the investigative team of writers term "avoidable deaths" in nursing homes and similar care settings. The article begins vividly, with an example from Doylestown in southeastern Pennsylvania:
Claudia Whittaker arrived to find her 92-year-old father still at the bottom of the nursing home's front steps. He was covered by a tarp and surrounded by police tape, but the sight of one of his slim ankles erased any hope it wasn't him. DeWitt Whittaker, a former World War II flight engineer, had dementia and was known to wander. As a result, his care plan required him to be belted into his wheelchair and watched at all times. Early on Sept. 16, 2015, Whittaker somehow got outside the Golden Living home in Doylestown and rolled down the steps to his death.
"It wasn't the steps that killed him. But the inattention of staff and their failure to keep him safe," his daughter said.
The article is especially critical of recent data coming from for-profit nursing homes in Pennsylvania, pointing to inadequate staffing as a key factor:
In general, according to PennLive's analysis, Pennsylvania's lowest-rated nursing homes are for-profit facilities. Half of the state's 371 for-profit homes have a one-star or two-star rating – twice the rate of its 299 non-profit nursing homes. The reason for that discrepancy, experts say, isn't complicated: Studies have found that for-profit nursing homes are more likely to cut corners on staffing to maximize profit.
Spokespeople from both the for-profit and nonprofit segments of the industry are quoted in the article and they push back against the investigators' conclusions.
I have to say from my own family experience that while adequate staffing in care settings is extraordinarily important, older residents, even with advanced dementia, often have very strong opinions about what they prefer. My father is in a no restraint dementia-care setting, with a small cottage ("greenhouse") concept and lots of programming and behavioral interventions employed in order to avoid even the mildest of restraints. It was a deliberate choice by the family and my dad walks a lot around the campus and has his favorite benches in sunny spots.
The trade-off for "no restraints" can be higher risk. Residents, including my father, are sometimes stunningly adept at escape from carefully designed "safety"plans, such as those necessary in the summer heat of Arizona. Family members often remain essential members of the care team. For example, this summer I plan my daily visits at the very hottest part of the day, in order to help try to lure my father, a late-in-life sunshine worshiper, back into the cool. I watch the staff members exhaust themselves intervening with other ambulatory and wheelchair residents who are constantly on the move.
None of this "care stuff" is easy, but certainly the Penn Live article paints a strong picture for why better staffing, better financial resources, and more reality-based plans are necessary. For more, read "Failing the Frail." Our thanks to Doug for sharing this good article.
August 3, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management | Permalink | Comments (0)
Tuesday, August 2, 2016
McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published a candid editorial about factors affecting health care fraud in the industry. He writes:
[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations.
Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.
Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.
For more, read "It's Time for 'The Talk' About Healthcare Fraud."
Monday, August 1, 2016
As some readers may recall, last year we reported on the emotionally fraught criminal trial in Iowa for a former state legislator, who was ultimately acquitted of sexual assault of his wife. The allegations arose in the context of alleged sexual relations with his wife after she was admitted to a nursing home.
Assistant Professor of Law Alexander A. Boni-Saenz, from Chicago Kent College of Law, has drawn upon this case and others to further explore his proposals for "advance directives" whereby adults could specify their decisions in advance of incapacity. Alex's latest article, Sexual Advance Directives, forthcoming in the Alabama Law Review, is available on SSRN here. From the abstract:
Can one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive.
The central claim of this article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent—the consensus of consents—that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse.
Alex is a thoughtful writer on challenging topics, often looking at the intersection of health care, estate law and elder law planning.
Thursday, July 28, 2016
This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes. The articles in the Spring 2016 issue include:
- The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
- Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
- The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
- Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
- Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
- Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and
- Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah
In my review of the articles, I would have liked to see more discussion of the potential expectations of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care. In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement. This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning. Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Friday, June 24, 2016
Our friend, GW Law Professor Naomi Cahn, has shared with us a recent essay by her long-time friend, Cindy Schweich Handler, who writes of the death of her mother-in-law. This essay presents an important counterpoint to the lawsuit that Becky Morgan reports on today for our Blog, about a California lawsuit that attempts to challenge California's physician-assisted suicide law.
Ms. Handler writes with sensitivity -- and disagreement -- about the decision, at age 86, of her mother-in-law to end her own life:
Ellen is dying the way she lived: actively, with a lot of input. At 86, like so many of her contemporaries, she suffers from multiple maladies: a slow-growing leukemia called CLL; a recent mini-stroke; spinal stenosis that pains her legs and numbs her hands; recurring bouts of intestinal distress that leave her dehydrated and housebound. The ailments are awful and life-disrupting, but none of them are finishing her off. She doesn’t want to acclimate herself to wheelchairs, live-in aides and other affronts to her independent self-image. What she wants is to not treat her symptoms, to voluntarily stop eating and drinking, and to die.
While her pronouncement that she’s “had a good run” has left Harry and me sidelined with shock, our eldest son, Ted, understands....
Ted finds Ellen an excellent palliative-care doctor near her New Jersey retirement community who consults with the two of them for hours, making sure the patient isn’t suffering from a temporary, treatable depression. The doctor conference-calls with Harry and his two siblings, and they affirm that they all want what she wants. The Do Not Resuscitate and more detailed Physician Orders for Life-Sustaining Treatment forms are filled out and displayed prominently on her dining room table. Jennifer, who has experience in these situations, is available, and she can be at Ellen’s side 24/7. Everything is in place.
Then, a complication: Ellen’s independent living community prohibits outside aides from working there. For my mother-in-law to die in a hotel or apartment rented for the occasion is unthinkable to me. Harry and I are empty-nesters, with a third-floor suite that’s quiet and private. It makes sense that she should die in the guest room above our bedroom.
Although Ms. Handler and her husband provide Ellen her last place of hospice and palliative care, Ms. Handler doesn't embrace Ellen's plan:
What I don’t understand, why I have such a powerful case of cognitive dissonance, is her timing. Her retirement-home friends always remark on how she holds court in the dining hall after meals. Neat stacks of the Economist top her end table. She goes on field trips to museums, sees movies before I do. Surely she wants to stick around to see more graduations, or at least to find out what happens with the whole Donald Trump thing.
She suggests Ellen has more "good-enough years" left in her. But, as the essay explains, good enough is not good enough for a woman of Ellen's steely strength and approach to life.
For the full account, I recommend "I didn't like it, but this was the death she chose," from the Washington Post. Thank you, Naomi, for sharing this timely essay, and to Ms. Handler for her own emotional strength in writing it. The comments appearing on the Washington Post website are also important reading.
Tuesday, June 21, 2016
On June 15, I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders. It was very good. Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation. Here were some of the "take away" messages I heard:
- "Age 78" -- why might that be important? Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch." As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment" creates the "happy hunting ground" for the scammer.
- "I make 'em feel like they are Somebody again." That's how one scammer explained and rationalized his approach to older adults. By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again. That "reaction" by the older consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money." Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
- "Psychological reactives." That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish." An indirect, oblique approach may be necessary to help the victim understand. One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses.
- "Financial Institutions are increasingly part of the solution." According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or by making "all individuals" who suspect such fraud mandatory reporters. Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.
The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse. One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation."
June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)
Friday, June 17, 2016
The ABA's Bifocal publication includes a new resource guide designed to help lawyers identify and help to implement decision-making options for persons with disabilities that are less restrictive than guardianships.
The "PRACTICAL Tool," with the first word intended to serve as an acronym for nine steps that a lawyer can use to identify legal and practical approaches, includes:
- Presume guardianship is not needed
- clearly identify the Reasons for concern;
- Ask if a triggering concern may be temporary;
- determining whether the concerns can be addressed by Community resources;
- ask if the person already has a Team to help make decisions;
- Identify the person's abilities;
- screen for potential Challenges;
- Appoint a legal support consistent with the person's values; and
- Limit any necessary guardianship petition.
For more, read Resource for Lawyers Targets Options Less Restrictive than Guardianship, Bifocal, the Journal of the ABA Commission on Law and Aging, Volume 37, Issue 5.
Thursday, June 16, 2016
A recent court decision in New York details the extraordinary efforts made by an individual to take advantage of a former co-worker as she aged and became affected by dementia. One of the tools of abuse was a Power of Attorney, dated 2010, that he reportedly used as his authority to isolate her from family members. The court found that he was able to then manipulate her as he controlled her finances, having the woman sign checks he later claimed were "gifts," for purposes such as to "defray costs of his visit to France to see his daughter," "to help him buy a house in Normandy," or to cover "the costs of his art exhibit in Paris." Ultimately, the court concluded that the respondent/defendant, who under New York law was in the role of fiduciary as an appointed agent, could not satisfy his burden of proof to show the alleged gifts were free from undue influence.
The trial level court entered an order finding him liable for $122,000 plus costs and interest, and restraining him from "transferring, using, spending or hypothecating any of his assets" until the judgment was paid. See Matter of Mitchell, 2016 NY Slip Opinion 50853(U), decided June 3, 2016 by the New York Supreme court, Kings County.
That is the "befriender" side of the issues. However, the court also addressed the possibility of a will executed in 2013. The discussion of the will brings into play the role of an attorney who was called by the defendant to testify at the hearing on the gift transactions, apparently in an attempt to bolster his arguments about the woman's capacity. That plan backfired.
The way it all plays out through the testimony, as recounted by the judge in his opinion, raises important questions about what could or should the lawyer have done differently.
The court wrote:
Wednesday, June 15, 2016
In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower." Her experiences with retaliation -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.
In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:
An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services]. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.
Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."
Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring. She cautions:
I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.
It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....
When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.
Monday, June 13, 2016
Professor Laura L. Carstensen, PhD, who is the director of the Stanford Center on Longevity, has an intriguing essay in a recent issue of Time magazine, focusing on research on social engagement among the Boomer generation. She writes
The 55-to-65-year olds just about to join the ranks of the elderly are far less socially engaged now than their predecessors were at the same age 20 years ago. And this pattern emerged across all traditional measures of social engagement: Boomers are less likely to participate in community or religious organizations than were their counterparts 20 years ago. They are less likely to be married. They talk with their neighbors less frequently. And it doesn't stop with participation in communities and neighborhoods: boomers report fewer meaningful interactions with their spouses and partners than did previous generations, and they report weaker ties to family and friends.
She asks, "Should we be worried about these trends?" For her answers, read "Baby Boomers are Isolating Themselves as They Age." (Hint, the subtitle says: "That's bad -- for everyone.")
Friday, June 10, 2016
Filial Friday: Georgia Supreme Court Rules that No Equitable "Right of Access" is Created by Filial Support Law
Adult daughter Tamara Williford filed a petition for equitable relief in February 2015, seeking a Georgia court's order that her father's current wife must allow her access to her father. Williford alleged that her father, Tommy Brown, was in poor physical health, unable to leave his home, but in good mental condition. She said she had talked with him regularly by telephone and in person, until his wife prevented her from doing so.
Apparently Mrs. Brown, Tommy's wife, was named as the only defendant in the lawsuit, and responded by denying Williford was a biological child, denying her husband was in poor health, and denying that he wanted to see Williford.
In June 2016, the trial court dismissed Williford's petition, and she took a timely appeal to the Georgia Supreme Court. Oral argument was held in February 2016.
In Williford v. Brown decided May 9, 2016, the Georgia Supreme Court (pictured above) unanimously affirmed the dismissal, finding that there was no statutory or other legal grounds alleged that would support the "equitable remedy" sought by Ms. Williford. Specifically, the court rejected the argument made on appeal that Georgia's version of a filial support law, OCGA Section 36-12-3, provided grounds for relief. That statute says:
The father, mother, or child of any pauper contemplated by Code Section 36-12-2, if sufficiently able, shall support the pauper. Any county having provided for such pauper upon the failure of such relatives to do so may bring an action against such relatives of full age and recover for the provisions so furnished. The certificate of the judge of the probate court that the person was poor and was unable to sustain himself and that he was maintained at the expense of the county shall be presumptive evidence of such maintenance and the costs thereof.
The court concluded that this section "does not purport to confer on adult children a right to unrestrained visitation" with parents. "Moreover, Ms. Williford did not allege in her petition that Mr. Brown is a 'pauper,' much less that she believes that Hart County has or will ever have to maintain him at county expenses and then pursue an action against her."
In a footnote to the ruling, the court observes that the daughter "did not alleged and does not claim on appeal" that the wife prevented her husband "from leaving his home or communicate with persons other than Ms. Williford." Therefore, the court said it was not necessary to address whether a theory of "general habeas corpus" where a person was allegedly held "incommunicado illegally and against his will."
This seems like a very sad case. One Georgia elder law attorney suggests that "if the ruling in this case disturbs you, then perhaps it is a good time to call your local legislator."
June 10, 2016 in Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 9, 2016
Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us. Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.
Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition. He writes:
In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.
Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.
Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:
Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).
On free speech implications, he writes:
The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.
And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:
State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.
The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.
June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, June 7, 2016
John Oliver, in his typically over-the-top, but still informative manner, focuses on the industry of debt collection and how it can be especially troublesome for older adults. Indeed, when I was running an Elder Protection Clinic for Dickinson Law, a significant percentage of our clients were struggling with "old" debts, often connected to health care costs, and were dealing with aggressive attempts to recover what has come to be known as "zombie debt." One woman interviewed about $80k in debt arising out of denial for insurance coverage for her elderly husband's hospitalization for breathing problems, describes her fear and frustration after a lifetime of working and saving. She asks, "Is this how my life is going to end?"
Our thanks to Karen Miller, Esq., in Florida, for sending this link.
We've reported earlier, including here and here, about recent financial and management issues at a Tampa, Florida continuing care retirement community that operates under the name of University Village. The latest event is the May 31, 2016 order of an administrative law judge that would uphold the decision of the Florida Agency for Health Care Administration to revoke the license for operation of a skilled nursing facility at University Village..
Many of the concerns appear to focus on the alleged action (or inaction) of an individual, John Bartle, who is described as holding various titles in the company that controls the CCRC's operations. At one point, the Administrative Law Judge made clear his view on Bartle's testimony:
The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible.
My thanks to Karen Miller, Esq. for sharing this unusual ruling.
Friday, June 3, 2016
"He Died with Guns in His Closet." That's the provocative (and effective) title of an upcoming continuing legal education program (3 credits) in Pennsylvania. The half-day Pennsylvania Bar Institute program will be offered live in Pittsburgh on June 8, and both in-person (Mechanicsburg) and by webcast/simulcast on June 16. The program will address "new regulations for gun trusts that go into effect on July 13, 2016;" acquisition, possession disposition and transportation of firearms; how people become disqualified to interact with firearms; gun trusts; and the National Firearms Act's implications for trust and estate practitioners.
Last fall, I was at a statewide meeting of continuing care community residents in the Southeastern part of the US, and I admit I was startled when residents raised the topic of "what to do about guns" in their CCRCs.
Here's a link to the CLE details. My thanks to Pennsylvania practitioner and great estate planning adjunct professor Vicky Trimmer for alerting me both to the changes in the law and this upcoming program.
Thursday, June 2, 2016
Recently I was at a dinner party with academics from across the spectrum of my university. As often happens, a group of us seated together for the meal swapped basic information about what we do in our day jobs. It was a fun group of art professors, special education specialists, and even an agricultural economist. We talked art and politics across the board. I had at first identified myself only as a professor at the law school, but during a lull in the conversation I explained my area was "law and aging" generally and more specifically the work of elder law attorneys. Ears perked up.
I had that experience that I suspect doctors have all the time. Everyone at the table had a question or story to tell of their family's recent aging issue. And as I listened, I recognized a common theme among these skilled, thoughtful professionals. I kept hearing that we knew "mom" or "aunt" or "grandpa" was getting older, and we offered help, but the help we offered either wasn't enough or was rejected outright. And often, the second part of their stories involved a "crisis." A particularly poignant example was the caring granddaughter who cooked and froze two weeks of meals for her frail, housebound grandmother, only to realize that her grandmother's "little bit of confusion" resulted in her opening all of the 14 days of dinners on the very first day. It precipitated a diabetic crisis for the grandmother, as well as the loss of the majority of the food.
Over the dinner, I was surprised to find myself talking a lot about what is dementia (and does it differ from Alzheimer's) and whether it can be distinguished from "temporary" conditions that cause short term confusion. Everyone at the table was searching for answers and admitting they didn't know enough before the crisis event. And I could completely empathize, because even with some 20 years of being fairly deeply immersed in elder care issues, I am regularly surprised by some new topic or challenge in my own family.
I had good reason to think about the party conversation again while listening to WITF-FM Public Radio's Smart Talk program on June 2. The program's guests were Dr. Linda Rhodes, the former Secretary of Aging for Pennsylvania, and Joan Krechmer, a geriatric care manager and the executive director for Jewish Family Services, in York, Pennsylvania and the topic was "Caring for Mom, Dad and Kids." Lots of people calling in and writing with very specific questions, and many of the questions were triggered by both crisis events and chronic care issues.
An example of one question was from a family member who was told the family had "24 hours" to decide about a skilled nursing facility when their loved one was being discharged from the hospital. "There is barely time to do the research" the program guests were talking about. And that is true. Even though federal law imposes a protocol on hospitals about discharge notices, and even provides a mechanism for informal appeal, which if triggered properly can automatically result in more time, most people simply won't know about that short-term remedy in advance.
The Smart Talk radio program is part of a larger series of events on the topic of family care-giving, including airing of the PBS television documentary on Caring for Mom & Dad and in-person sessions at area locations to talk about advance planning and identify resources in advance of a crisis.
Linda Rhodes, the former PA Secretary of Aging has written her own book, Caring for Aging Parents: The Essential Guide.
Wednesday, June 1, 2016
The latest issue of Experience, the magazine of the Senior Lawyers Division of the ABA is devoted to elder driving. Eight articles are devoted to the issue of driving. The magazine also includes articles on estate planning, technology and ethics. The entire issue is available here. Links to individual articles are also accessible from here.
Thursday, May 26, 2016
Plaintiffs' Class Certified in Dispute over LTC Insurance Coverage for Care by "Managed Residential Communities" or "Assisted Living Services Agencies"
As we've reported fairly often on this Blog (see e.g., here, re California litigation), the long-term care insurance (LTCI) industry has been battling disputes on many fronts. One of the fronts is whether insurers can deny benefits to pay for care provided in settings other than "skilled nursing facilities." On March 1, 2016, a federal court in Connecticut granted class certification to estates and policy holders who are challenging denial of coverage for stays in "managed residential communities" (MRCs) in Connecticut or to cover services provided through "assisted living services agencies" (ALSAs). In Estate of Gardner v. Continental Casualty Company, 2016 WL 806823, the court agreed the plaintiffs had satisfied the class certification requirements for "numerosity," commonality, and typicality of issues, as well as establishing grounds to argue "imminence of injury" to support a claim for injunctive relief:
While Plaintiffs do seek monetary relief, it appears to the Court that what they primarily seek is forward-looking relief. Plaintiffs purchased long-term care policies, presumably with the expectation that they would utilize their coverage over a long term. Any adequate remedy would have to ensure that they could obtain coverage for claims prospectively. For that, an injunction is required. Moreover, Plaintiffs leave no ambiguity about the content of the injunction they seek: an end to Defendant's alleged policy of denying claims for assisted-living facilities across the board. This is exactly the type of relief Rule 23(b)(2) was designed to facilitate. Because Plaintiffs' proposed Rule 23(b)(2) class satisfied all of the requirements of Rule 23, certification is proper.
For more on the background of the Connecticut case, see "Connecticut class action accuses insurer of denying assisted-living claims."