Wednesday, March 16, 2016
A recent opinion in Matter of L.H (M. H.), a contested guardianship matter that was eventually settled, provides a window into legal fees. In this New York case, following a settlement, the court was asked by the parties to determine reasonable fees to be paid to the attorney who served as the "court evaluator" and the attorney who successfully represented the Alleged Incapacitated Person (AIP) in resisting the guardianship.
The court noted the guardianship was part of larger family disputes following a divorce. As part of the settlement, the petitioner, a family member of the AIP, withdrew the petition for appointment of a guardian. The parties stipulated that the fees could not exceed $50,000. That amount was set aside for any payments ordered by the court, funded by a trust held by the petitioner (not the AIP).
The court considered this withdrawal to be the "functional equivalent" of a dismissal, giving the court discretion under the statute to allocate fees in such proportions as it deemed just.
As required by New York Law, the court made detailed findings. The court concluded:
- "[The evaluator] performed in an extraordinary manner under difficult circumstances ... [and her] report focused a spotlight on the amended petition's lack of merit, and was instrumental in resolving this proceeding." The court awarded the evaluator $22,748 for 82.75 hours of professional services at $275 per hour.
- "[T]he efforts [of the attorney for the AIP] led to a positive outcome for the AIP, with her civil liberties fully intact, there being no need for a guardian for her. Attorneys who have similar experience and status within the guardianship bar charge between $400 and $600 dollars per hour for their services. However, in view of the agreed upon $50,000 cap on the possible awards for the feeds incurred... [the attorney for the AIP] is awarded $27,051.25... as reasonable compensation (at $335.00 per hour) for 80.75 hours of legal services."
The court observed that the lawyer for the AIP "is one of the preeminent guardianship and elder law attorneys [in] New York State."
Friday, March 11, 2016
From the most recent issue (issue No. 3) of Bifocal, the electronic journal published by the ABA Commission on Law and Aging, links to several interesting feature articles:
When lapses in memory or physical issues start to affect activities of a loved one's daily living, such as cooking, eating, bathing, or paying bills, it's time to evaluate their needs and living situation. As the affected loved one's care needs increase, attorneys can assist with drafting caregiving/personal care agreements.
To ensure that all beneficiaries can receive their payments and make proper use of funds, Congress has granted the Social Security Administration (SSA) the authority to appoint third parties, known as representative payees, to receive and manage payments when the beneficiary is unable to do so. With Alzheimer's disease and other cognitive impairments on the rise, more seniors find themselves unable to manage their own benefits. SSA is currently exploring additional ways to identify seniors who may be in need of a representative payee. When working with seniors or caring for loved ones, please be aware of the following information about the rep payee program to help identify seniors in need.
Emeritus pro bono practice rules can be effective tools for recruiting volunteer attorneys. Specifically, by reducing some of the licensing burdens for attorneys who agree to limit practice to pro bono only, these rules are designed to encourage pro bono service. Whether these rules are actually effective in encouraging pro bono service, however, is an empirical question. To answer that question, a short online survey was done in 2014 returning modest data. In 2015 the ABA Standing Committee on Pro Bono and Public Service--in collaboration with the ABA Commission on Law and Aging--launched a project to collect more complete data on participation, the number of hours, and what recruitment methods appear to be most successful.
Tuesday, March 8, 2016
Recently I answered my office phone at the end of a long day. The caller was upset, but eventually I learned that part of the concern was about something the caller thought I had said. As I tried to make heads or tails about what the caller was saying, I realized the concerns were triggered by a book I knew nothing about. Nonetheless, the caller was telling me I "was in the book." How could that be true?
With a bit of research after the phone call, I was able to find the book in question. It turned out it was someone's 2016 self-published book, advertised on Amazon. When I reviewed a copy of the actual book, I was surprised to find that a rather lengthy comment I had written for the Elder Law Prof Blog appeared in this book, right down to a missing period in my original post. Indeed, much of the book appeared to me to be this sort of "cut and paste" effort. Only occasionally did the author identify an item in the book as "reprinted with permission."
I had never heard of the author of the book and I had not been asked permission to use my Blog item. In addition, although the author of the book said nice words about my work, the context in which my item appeared was not acceptable to me. I have asked the book's author to delete my piece from all future printings of the book.
Folks, to state what I thought was obvious, this blog is copyrighted. While copyright symbols are not necessary to protect creators' rights, the notice -- "(c) Copyright 2004-16 by Law Professor Blogs, LLC. All rights reserved." -- appears at the bottom of every webpage for each of the blogs appearing on the Law Profs Network.
Speaking for myself, it is, of course, permissible to quote my blog items, with proper attribution. As long as you use common sense about the length of any quote, you don't need permission to do that. You can also use hyperlinks from your blogs to our blog. But we draw the line at you copying our posts into your own publications. For reprint or republication rights you need to ask and get permission.
People often do request permission to reprint our posts. I get this request most often when my posts analyze a new law, a new case or discuss a legal trend I'm seeing emerge. My co-blogger, Becky Morgan, and I frequently give permission for appropriate republication or reprinting. We are authorized to do so by the company that holds the copyright. Personally, I like to make sure that the version to be used is updated, and I look for misspellings or typos. (Those pesky problems can creep into a Blog all too easily with the fast-pace involved in creating this daily, ongoing commentary.) More importantly, sometimes I also say "I'm sorry, but no," especially if I feel that the intended use is inconsistent with my thinking on the topic, or with my plans for the Blog post in question. The "rights" of a copyright holder are about more than just compensation!
Please respect the copyright on this Blog! Write or call if you want permission to reprint an item. If you have general questions about Blogs and copyrights, here is a useful discussion by Mark Fowler, an experienced copyright attorney in New York.
Monday, March 7, 2016
In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.
Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.
To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:
- Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause." Changes to the law became effective on July 1, 2015.
- Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications. For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
- California, Assembly Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail." The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care. For more on the California legislation, signed by California Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.
These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect. It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.
March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Tuesday, February 23, 2016
Stakeholders and Policymakers Collaborate on Proposals for Better Approach to Financing Long-Term Care
On February 22, 2016, a diverse collection of individuals, representing a broad array of stakeholders interested in long-term care, released their report and recommendations for major changes. In the final report of the Long-Term Care Financing Collaborative (LTCFC) they propose:
•Clear private and public roles for long-term care financing
•A new universal catastrophic long-term care insurance program. This would shift today’s welfare-based system to an insurance model.
•Redefining Medicaid LTSS to empower greater autonomy and choice in services and settings.
•Encouraging private long-term care insurance initiatives to lower cost and increase enrollment.
•Increasing retirement savings and improving public education on long-term care costs and needs.
ElderLawGuy Jeff Marshall wrote to supplement this post by providing details of the report, written by Howard Glecknan of the Utban Institute. Thanks, Jeff!
Members of the Collaborative included:
Gretchen Alkema, The SCAN Foundation; Robert Blancato, Elder Justice Coalition; Sheila Burke, Harvard Kennedy School; Strategic Advisor, Baker, Donelson, Bearman, Caldwell & Berkowitz; Stuart Butler, The Brookings Institution; Marc Cohen, LifePlans, Inc.; Susan Coronel, America’s Health Insurance Plans (AHIP); John Erickson, Erickson Living; Mike Fogarty, former CEO, Oklahoma Health Care Authority; William Galston, The Brookings Institution; Howard Gleckman, Urban Institute; Lee Goldberg, The Pew Charitable Trusts; Jennie Chin Hansen, immediate past CEO, American Geriatrics Society; Ron Pollack, Families USA; Don Redfoot, Consultant; John Rother, National Coalition on Healthcare; Nelson Sabatini, The Artemis Group; Dennis G. Smith, Dentons US LLP; Ron Soloway, UJA-Federation of New York (retired); Richard Teske (1949-2014), Former U.S. Health and Human Services Official; Benjamin Veghte, National Academy of Social Insurance; Paul Van de Water, Center on Budget & Policy Priorities (CBPP); Audrey Weiner, Jewish Home Lifecare, immediate past Chair, LeadingAge; Jonathan Westin, The Jewish Federations of North America (JFNA); Gail Wilensky, Project HOPE;Caryn Hederman, Project Director, Convergence Center for Policy Resolution; Allen Schmitz, Technical Advisor to the Collaborative, Milliman, Inc.
Only Limited Authority as Health Care Agents? The Latest Grounds to Challenge Dreaded Arbitration Clauses in NH Cases
The New York Times offers another window into concerns about pre-dispute binding arbitration provisions that are routinely found in nursing home agreements. This is a long-simmering war, with many battlefronts and tactical arguments, as documented in the article. However, the article also focuses on a narrow group of cases where courts have rejected a binding effect for arbitration clauses signed by someone serving "merely" as a health care agent for the incapacitated resident. (I hope my Contracts course students this semester are reading this article!)
The article offers an additional opportunity to consider the tensions between public policies on either side of the debate over "fairness" of arbitration as a forum for consumer claims:
Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans.. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.
State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.
Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.
Mr. Barrow’s case [set for trial in Massachusetts] is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back. As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf.
Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration.
Our thanks to attorneys Karen Miller in Florida and Morris Klein in Maryland, plus Dickinson Law students Joe Carroll, Corey Kysor and Kadeem Morris in Pennsylvania for sending us the link to the NYT coverage.
February 23, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Statistics | Permalink | Comments (0)
Monday, February 22, 2016
A John A. Hartford Foundation-sponsored study released this month uses Medicare data to examine health care for older Americans, with a self-described "emphasis on the patient's perspective." Both the methodology and the conclusions are intriguing. The researchers report:
For the first time, we measure the intensity of care in terms of how many days per year the average Medicare beneficiary is in contact with the health care system. We can see that beneficiaries in some regions see twice as many unique clinicians for ambulatory care than in others. We also can see in which regions beneficiaries are more likely than not to have a primary care physician as their predominant provider of care.
We also examine the adoption of new evidence-based practices to show that, while some regions showed substantial progress, others still fall short. For example, in some regions, fewer seniors are being prescribed inappropriate high-risk medications, and in others, thirty-day readmission rates are falling. Yet screening tests for prostate cancer and breast cancer among beneficiaries 75 and older remain unnecessarily high, and the data in this report suggest that we are still waiting too long to refer patients to hospice care.
On the one hand, the report demonstrates wide regional variation in the percentage of patients enrolled in "hospice" during the last three days of an individual's life. The researchers conclude: "Referrals to hospice care that are done too late ... adversely affect the quality of care, the reported experiences of patients and families, and their satisfaction with the health care system."
On the other hand, the report cites "clinical evidence" that shows that "feeding tube placement" in patients with advanced dementia "does not prolong life or improve outcomes, and in fact leads to further complications and adverse effects such as the increased use of restraints." Nonetheless, the report shows that in some regions of the country, 12% to 14% of patients with dementia may be on feeding tubes, pointing to locations such as southern California, Lake Charles, Louisiana, and Dearborn, Michigan.
For the full report, see the Dartmouth Atlas project report, "Our Patients, Ourselves: Health Care for an Aging Population."
Further, for an region-specific analysis of the report findings, see iNewsource's "Care for San Diego's Dying Patients Needs to Improve, Study Finds."
Tuesday, February 16, 2016
Our friends at the Weinberg Center for Elder Abuse Prevention sent application information for law students interested in a summer 2016 internship in New York:
The David Berg Center for Law and Aging is seeking select students for its Summer 2016 internship programs. The Center focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation.
Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale. Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse.
Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will potentially be exposed to legal practice in all five boroughs of New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse.
Past issues have included HIPAA regulations, questions surrounding legal capacity, immigration, powers of attorney, Medicaid eligibility, copyright, and right to privacy. The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters. The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. To apply, please send a resume, cover letter and writing sample to email@example.com.
Friday, February 12, 2016
We've all seen it -- a family having dinner "together" while each member of the family is using a cell phone to text rather than talk. Is this likelihood to affect long-term living, and if so, how?
Stanford University's Center on Longevity has a new report on trends in three key areas usually associated with longevity -- health, financial security and social connections. The Sightlines Project: Seeing Our Way to Living Long, Living Well in 21st Century America analyzes data from studies that included more than 1.2 million Americans, and both positive and negative trends are documented.
Next will be "plans to host roundtable discussions with policymakers, private sector leaders and researchers to develop solutions to longevity problems." The goal is to better support "living long and living well." One component, therefore, is to examine the implications of "weaker social networks:"
Social engagement with individuals and communities appears weaker than 15 years ago, the research revealed. This is especially true for 55- to 64-year-olds, who exhibit notably weaker relationships with spouses, partners, family, friends and neighbors. They also are involved less in their communities than their predecessors.
"The vulnerability and disengagement in the group headed into retirement warrants further attention," Carstensen said.
The study does not address trends in the use of social media.
Amy Yotopoulos, director of the center's mind division, said, "It's too soon to tell whether asynchronous, technology-mediated forms of social engagement – texting, chat, posting and tweeting – will provide comparable social benefits to more traditional forms of interaction with family and friends."
For more on the Center's research plans, see Stanford's report on "Stanford Project Suggests Longer, Healthier Lives are Possible." My thanks to Professor Laurel Terry for sharing this article.
Tuesday, February 9, 2016
As someone who developed and led an Elder Protection Clinic staffed by law students for more than a decade, I was interested to see that the latest issue of ABA's Bifocal publication includes an article titled "Ethical Challenges of Using Law Student Interns/Externs to Expand Services to Low-Income Older Adults." The article was earlier used as presentation materials for the 2015 National Law and Aging Conference in Washington, D.C., in October of 2015.
The writers outline the potential for students and recent graduates to serve identified legal service needs and use the experience of Elder Law of Michigan,Inc. to demonstrate how one model, with a Legal Hotline, has evolved over time:
In 2013, we switched to a model that placed the law students directly on the front lines answering calls to the legal hotline. In 2014, almost 25% of the calls handled by the hotline were done by either a law student or recent college graduate. This means that without this resource, almost 1,500 seniors would not have received service in 2014.
At first glance, you would wonder why we didn’t just use more law students to help more clients. After all, if 25% of the cases is great, wouldn’t 50% of the cases be better? Not really. Here are a few of the unintended consequences that resulted from our increased use of law students.
The amount of staff time needed to train and supervise law students increases considerably. For each student who works on the legal hotline, we need a third of a full-time employee's time for supervision. There was a diminishing need for more supervision once we had three students working at the same time. So, for us to minimize the additional staff time needed, we scheduled at least three law students at the same time.
Client donations dropped. After careful research, we found that clients who called and were assisted by a law student didn’t feel the need to donate to the organization because ELM was getting free help and the service provided was part of the law school experience. So clients were less likely to donate to us if they were assisted by a law student.
More staff wanted to be involved with the law students. We found that as our law student program grew, more of our staff wanted to be involved with the program. They liked the energy that was created by this group each day. (We had 11 law students each semester, so there was always a lot of activity.) Not everyone can work with the law students every day. They have to share!
Monday, February 8, 2016
As described recently by the ABA Journal, Avvo, founded in Seattle by a self-described "tech-savvy lawyer," Mark Britton, in order "to make legal easier and help people find a lawyer," is expanding its offerings of "fixed-fee, limited-scope" legal services. The ABA Journal reports:
Avvo first got into the business of offering legal advice last year when it launched Avvo Advisor, a service that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. With this new service, Avvo will determine the types of services to be provided and the prices. Attorneys who sign up will be able to select which services they want to offer. When a client buys a service, Avvo sends the client’s information to the attorney. The attorney then contacts the client directly and completes the service.
Clients will be able to choose the attorney they want from a list of those within their geographic area who have registered to participate. Clients pay the full price for the service up front.
After the service is completed, Avvo sends the attorney the full legal fee, paid once a month for fees earned the prior month. As a separate transaction, the attorney pays Avvo a per-service marketing fee. This is done as a separate transaction to avoid fee-splitting, according to Avvo. Attorneys pay nothing to participate except for the per-case marketing fee.
Some practitioners undoubtedly are nervous about the effects of this format, expressing concern about quality and "price-point" effects. Others see this as an option for the known, huge number of low and modest income persons, who never communicate with attorneys, for a host of reasons including concerns about price.
Will older clients and their families, facing a range of transactions that could benefit from legal assistance, from POAs to contracts for care, use Avvo?
Friday, February 5, 2016
My friend and mentor Jeffrey Marshall, a/k/a ElderLawGuy on Twitter, once again uses practical experiences to illustrate how "planning in advance" for the possibility of emergencies makes sense, particularly as our loved ones age. He tracks the aftermath of an always dreaded "fall," an event in the life of an older person that too often can precipitate a downward spiral in the absence of a holistic care plan plan:
[M]y wife and I were thousands of miles away. How could we get her the immediate help that she needed?
Fortunately, the help was available. My wife and I had previously hired a professional care manager, Bonnie, in the town where gramma lives. As soon as we got the call from the emergency room we contacted Bonnie and filled her in. She swung into action at once. She visited gramma and evaluated her condition. She implemented a system of caregivers to stay with gramma. She set up a Monday morning appointment with gramma’s physician, attended it with her, and reported back to the family.
Bonnie served as the family’s eyes and ears and local expert and was able to ensure that gramma got the care and support she needed when she needed it.
For more details, read Jeff's blog post, "Caring for Mom when you are far away." I know that in my own family, who also lives far apart, over the course of my regular visits home I probably visited 10 different care providers with my mother or sister. This was during the year before we actually made the decision for my father. I kept saying "we can make these decisions without an emergency." It became my mantra. Not every emergency needs to be an emergency....
Thursday, February 4, 2016
My colleague Laurel Terry sent a link to this week's New York Times article that delves into the topic of "healthy aging." Thank you! While I can see "healthy aging"as a goal, I have to admit I had not thought carefully about what we mean with those words. Jane Brody's article, Finding a Drug for Healthy Aging, helps to explain, while also examining the latest push for medications that might serve the goal:
In 1980, Dr. James F. Fries, a Stanford University physician who studied chronic disease and aging, proposed that a “compression of morbidity” would enable most people to remain healthy until a certain age, perhaps 85, then die naturally or after only a brief illness.
Now, a group of experts on aging envisions a route to realizing Dr. Fries’s proposal: one or more drugs that can slow the rate of aging and the development of the costly, debilitating chronic ailments that typically accompany it. If successful, not only would their approach make healthy longevity a reality for many more people, but it could also save money. They say that even a 20 percent cut in how fast people age could save more than $7 trillion over the next half-century in the United States alone.
“Aging is by far the best predictor of whether people will develop a chronic disease like atherosclerotic heart disease, stroke, cancer, dementia or osteoarthritis,” Dr. James L. Kirkland, director of the Kogod Center on Aging at the Mayo Clinic, said in an interview. “Aging way outstrips all other risk factors.”
The practitioners of this field of study even have a name, geroscientists, "university scientists joined together by the American Federation of Aging Research to promote a new approach to healthier aging...."
Tuesday, February 2, 2016
Prolific scholar Richard Kaplan, from Illinois Law, has a new article with a clever title. Here's a taste from the abstract for “What Now? A Boomer’s Baedeker for the Distribution Phase of Defined Contribution Retirement Plans:”
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
This very practical article appears in NYU's Review of Employee Benefits and Executive Compensation, Chapter 4, for 2015.
Challenge to Attorney General's "Outsourcing" of Consumer Protection Suits Against Nursing Homes Fails in PA
In GGNSC v. Kane, decided January 11, 2016, the Pennsylvania Commonwealth Court rejected a challenge by owners and operators of long-term care facilities to the use of a private law firm to investigate and pursue claims based on alleged improper billing, contracting and marketing practices. The ruling was 6 to 1, with the lone dissenting judge not filing an opinion.
In the challenge, begun as a declaratory judgment action, the Facilities contended the investigations were "not based on any material consumer complaints," but were instead based on efforts by the law firm (Cohen Milstein) to generate lawsuits in Pennsylvania and other states. In Pennsylvania, beginning in 2012, the Pennsylvania Office of Attorney General signed a contingent fee agreements with the Cohen Milstein law firm, which has a history of pursuing class action suits in business and consumer protection areas. The Court permitted the Pennsylvania Health Care Association, a trade group for some 450 long-term care providers in the state, to join the Facilities' challenge as a petitioner.
In July 2015, the Facilities' challenge was "overtaken" by a Consumer Protection Law enforcement lawsuit filed by the Pennsylvania AG against two GGNSC facilities and 12 Golden Living nursing homes. Cohen Milstein was listed as counsel representing the State. Some of the Facilities' original arguments for blocking the Cohen Milstein investigatory actions became moot after the consumer protection suit was filed or could be addressed in the enforcement suit, according to the Commonwealth Court decision. (Other states have also contracted with Cohen Milstein to bring nursing home cases, including New Mexico.)
However, the Facilities continued to argue that only the Pennsylvania Department of Health (DOH) had "authority" to investigate or pursue litigation regarding quality of care. The Commonwealth Court disagreed:
Any investigation or enforcement action initiated by OAG is directly related to "unfair or deceptive acts or practices" purportedly committed by the Facilities with respect to the staffing levels at their facilities. As a result, while minimum staffing levels may be regulated by DOH for health and safety purposes, any representations, advertisements or agreements that the Facilities made with their residents with respect to staffing levels, whether in accord with those required by statute or regulation or not, may properly be enforced by OAG through its authority conferred by the Administrative Code and the Consumer Protection Law. Such action is proper under the foregoing statutes and does not constitute any impermissible administrative rulemaking regardless of whatever evidence OAG uses to establish a violation, including any type of staffing model. What OAG is seeking to enforce is the level of staffing that the Facilities either represented, advertised, or promised to provide to their residents and not what level OAG deems to be appropriate for the care of such residents.
Further, the Commonwealth Court ruled the Facilities "lacked standing" to challenge the OAG's use of a private law firm to investigate or prosecute the claims under the Administrative Code or the Consumer Protection Law, citing the Pennsylvania Supreme Court's similar ruling in Commonwealth v. Janssen Pharmaceutica, Inc. in 2010, a suit about alleged off-label drug prescriptions, pursued with the assistance of contracted outside counsel.
The outsourcing of state claims for consumer protection suits raises interesting issues. Such financial arrangements with outside law firms may be especially attractive to states in terms of risk/reward potentials, as the private firms typically agree to fund all or a portion of litigation costs for the class-action-like suits, with lower contingent fee percentages (10 to 20%) than you would see when such a firm handles suits on behalf of private plaintiffs. The option could be attractive to financially-strapped states or "embattled" state prosecutors such as the Pennsylvania AG.
Companies, particularly health care companies, have organized efforts to resist what they see as "abusive" lawsuits generated by private law firms. As one industry-focused report argues here, private firms lack a proper "public" perspective, failing to take into account the impact on business development, while also arm-twisting companies to extract settlements, arguing this comes at a high-dollar cost to the state's residents.
Monday, February 1, 2016
Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?" For many years, I would get a blank stare or, perhaps, "what exactly is elder law?" Now, more frequently the response is "do you have time for a quick question?" (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....")
I'm hearing more questions about home care workers. One frequent question is about overtime pay, and the type of employment definitely matters. The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.
Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight. Family members will tell me "we just want someone there in case something happens." That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services. There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.
In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation. See Home Care Association of America v. Weil. Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.
As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection." "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)
DOL provides this example:
Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.
For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city!
Friday, January 29, 2016
Following up on my post last week about the surge of interest in filial responsibility laws in South Korea, including the alternative concept, "filial duty contracts," recently I was interviewed as part of a English-language radio news broadcast in South Korea. The host asked for a comparative, international perspective. I thought the host's reaction to hearing about U.S. cases was interesting -- suggesting that lawyers (or perhaps law professors) aren't sufficiently tuned into the family emotions involved in the topic! Here's the podcast (about 10 minutes) from the live radio program.
Thursday, January 28, 2016
Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.
In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian." On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law. She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.
The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs. Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.
Despite rejection of the POA as evidence of the mother's preference for a guardian, the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property."
In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney. In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute. The appellate court reversed:
The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created
These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.
January 28, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, January 25, 2016
I think I might like winter better, if it always happened "conveniently" and with plenty of notice, as did Saturday's snow in Pennsylvania. For once, I was prepared to be at home, with a stack of good reading materials for catching up when the joys of house-cleaning and snow shoveling faded.
I am intrigued by the Fall 2015 issue of the NAELA Journal that focuses on how advances in genetic testing and medicine may be reflected in the roles of lawyers who specialize in elder and special needs counseling. A leading article in the issue introduces the three primary uses of modern genetic testing -- for diagnosis of disease, for determination of carrier status, and for predictive testing -- while reminding us there are limits to each function. In looking at age-related issues, the authors note:
Genetic testing is beginning to reveal information regarding susceptibilities to the diseases associated with old age: Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. Genetic test results showing a higher risk of such diseases can result in a cascade of consequences. Francis Collins, mentioned at the beginning of this article, responded to his test results thoughtfully by making lifestyle changes to reduce the probability that the increased genetic risk would be expressed in actual disease. It is important to note that, for some conditions, lifestyle factors’ influence on disease risk is understood; however, for many of the conditions that affect seniors, this influence is not yet known.
Other reactions to a high-risk test result may be more aggressive than diet and exercise changes. A well-publicized example is Angelina Jolie’s bilateral mastectomy. She was cancer-free but learned that she carries a BRCA1 mutation, which increases her lifetime risk for breast and ovarian cancer. She chose to undergo prophylactic mastectomy to reduce her breast cancer risk, whereas other women choose to increase breast cancer surveillance, such as undergoing more mammograms and breast MRIs. Both options are available to women who carry a BRCA1/2 mutation.
Will those found to be at elevated risk for more complex conditions such as Alzheimer’s disease or Parkinson’s disease make premature life choices, such as early retirement or marriage, based on perceived risk? Earlier in this article it is explained that an individual’s genotype rarely determines his or her medical destiny. For example, many people with a higher genetic risk for Alzheimer’s disease will not actually develop it, while many with no apparent higher genetic risk will. Is the risk that members of the general public will misunderstand and overreact to the results of a genetic test sufficient reason to prevent them from obtaining the information gleaned from such a test? Should we be ensuring that those undergoing genetic testing are aware of its benefits and limitations through individualized genetic counseling? This, of course, presents its own challenges of access and availability.
In reading this, it seems likely that lawyers may encounter complicated issues of confidentiality, especially when counseling "partnered" clients, while also increasing the significance of long-range financial planning and assets management.
For more, read Genetic Testing and Counseling Primer for Elder Law and Special Needs Planning Attorneys, by CELA Gregory Wilcox and Rachel Koff, Licensed Certified Genetic Counselor.
January 25, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Estates and Trusts, Ethical Issues, Retirement, Science | Permalink | Comments (0)
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)