Sunday, February 25, 2018

Md Court of Appeals Permits AG's "Improper Discharge" Suits Against Nursing Homes

As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes  -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals.  The Court tackles head-on the issue of who has the power to take action to address improper discharges.   

On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge."  Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits. 

In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring  a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.

The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland.  The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state.  As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."

There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see  State of Maryland v. Neiswanger Management Services LLC.

For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.

See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.  

February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, February 23, 2018

NYT: Focus is on Nursing Home Evictions and the Reality of Underfunding of Long-Term Care

The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note.  From the opening paragraphs:

Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.

 

The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.

 

Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.

This article is definitely worth a careful read.    

February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, February 22, 2018

Federal Authorities Coordinate Filing of Charges Against Individuals and Companies on Telemarketing and Postal Mail Fraud Schemes

On Thursday, February 22, 2018, federal authorities released news of formal charges filed against individuals and companies accused of telemarketing and postal fraud schemes targeting seniors.  The charges focus on more than 250 defendants, located both in and outside of the U.S.

The Federal Trade Commission's press release provides specific details from two cases filed in coordination with authorities in the State of Missouri.  In the first case:

[T]he FTC and the State of Missouri charged two men and their sweepstakes operation with bilking tens of millions of dollars from people throughout the United States and other countries.

 

The FTC and Missouri allege that the defendants, doing business under dozens of different names, sent tens of millions of personalized mailers falsely indicating that the recipient had won or was likely to win a substantial cash prize, as much as $2 million, in exchange for a fee ranging from $9 to $139.99.

 The Defendants distributed three types of phony mailers:        

  • Notices such as “Congratulations, You Have Just Won $1,230,946.00,” when the consumer hasn’t actually won anything;
  • Fliers that claim the recipient can win a substantial cash prize by answering a simple arithmetic question and paying  a registration fee, but that don’t disclose that there are multiple rounds to the “game of skill,” that the consumer will have to pay additional fees to advance to each round, and that in order to win, the consumer will have to answer a final, complex puzzle that few people, if any, can solve; and
  • Mailers that appear to be notices that the consumer has won a prize of $1 million or more, but that are really just newsletter subscription solicitations.

In the second case: 

[T]he FTC alleges that the defendants worked with Indian telemarketers to trick older Americans into buying bogus technical support services. Specifically, the defendants set up business accounts for the telemarketers, collected and deposited consumer payments, and provided a gloss of legitimacy to the scheme.

During my sabbatical last year, I often had occasion to answer the phone in my elderly mother's home. The majority of calls were from scammers, including those posing as the IRS, those offering "specialized health insurance," or seeking to "confirm" the homeowners' bank numbers for deposit of some kind of "winnings."  I was stunned by the volume of the calls -- and the persistence of the callers. If you tried to hang up, the callers would often ring back within seconds.  

Also, during my time as director of  Dickinson Law's Elder Protection Clinic, I can remember one particularly troublesome case involving a so-called Jamaican lottery scam, where the senior in question had been a sophisticated investor for her entire adult life, but was unable to resist the siren song of a scammer who managed to convince her to repeatedly send him money.  It was one of my first personal experiences with how dementia and financial abuse can intersect, through a particular form of early onset dementia known as FTD (frontotemporal disease).  The impairment often impacts judgment and the ability to evaluate risk, including financial risk.  

February 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, February 13, 2018

A Seldom Discussed Legal Issue? The Problem of Smokers with Dementia

My family has been struggling with the issue of what to do about the increasing safety risk of a family member who, at age 90+, is still a smoker, but now also a smoker with dementia. Our family has long since given up on the direct health risk of smoking for the individual.  But the evidence of a greater risk is everywhere:  small burn holes in the carpets, on the arms of a favorite chair, and even melted spots on the linoleum on the kitchen floor beneath the smoker's chair.  The latest sign of a serious problem frightened us the most -- a burned hole in the sheets of the bed.  Before dementia this individual never smoked in bed; but with dementia, plus problems walking and sitting in a chair, she began to insist on her "first" morning cigarette while still in bed.  The situation requires constant monitoring -- but even that is a challenge as it can be hard to find companions who can tolerate this level of smoking.  

There is plenty of evidence the risk is more than just to the smoker's health.  See, for example, the news link below for a report on a fire that caused the death of the elderly smoker and injuries to the firefighters. 

For discussions of approaches to managing, if not stopping the elder's smoking, see also Caring.com on "Should I Take Cigarettes Away From My Mother, Who has Alzheimer's?  One person commenting on the column, describes the situation with his own mother as a "dreadful problem. . . . It is the most difficult situation I have ever faced with her and there is no easy solution." Another person provided the following history:

The problem has miraculously resolved itself with the help of some very skilled caregivers. I had to move my [92 year old] mother to a Memory Unit in an Assisted Living Facility. They agreed that she could have 4 cigarettes per day under their supervision. They made an exception for her. For the first several months she asked repeatedly all day long for a cigarette. They patiently distracted her by redirecting her attention or promising a cigarette after dinner, whatever. It didn't stop her begging for a smoke over and over but now, at age 94 and with advancing dementia, she has almost forgotten that she's a smoker. 

That's an important caveat -- with dementia, at 94 -- she has "almost forgotten that she's a smoker." 

February 13, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Monday, February 12, 2018

Kaiser Health Offers Q & A on "Living Well with Dementia" on Tuesday, Feb 13

Sorry for the late news but Kaiser Health News is offering a live discussion via Facebook Live! and Twitter on "Living Well with Dementia" on Tuesday, February 13, from 12:30 to 2:00 p.m. Eastern Time.

Hear are details:  

Join Kaiser Health News on Tuesday, Feb. 13, from 12:30 to 2:00 p.m. ET for an informative and important discussion about improving care and services for people with dementia and supporting their caregivers. It’s an opportunity to learn from experts in the field about the challenges and difficulties facing the patient, the caregiver, the community and policymakers. Topics will include understanding the stages of dementia from a medical, social, psychological and environmental perspective (it’s not just memory loss); how to find help; how to manage difficult behaviors; and understanding medications for people with dementia. 

Kaiser Health News’ “Navigating Aging” columnist Judith Graham will moderate a discussion with you and a panel of experts as we explore this issue.

Our panelists are:

  • Nancy A. Hodgson, Ph.D., RN, FAAN, University of Pennsylvania, an expert on dementia care and end-of-life care for people with dementia; 
  • Helen Kales, M.D., University of Michigan, a geriatric psychiatrist and expert on dementia care and mental health issues; 
  • Yvonne Latty, BFA, MA, a journalist and professor, who is dealing with her mother’s Alzheimer’s;
  • Katie Maslow, MSW, Gerontological Society of America, an expert on improving care for people with dementia and supporting their caregivers; and
  • Mary L. Radnofsky, Ph.D., a former professor who lives independently since being diagnosed twelve years ago with dementia and is an advocate for people with dementia.

February 12, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science | Permalink | Comments (0)

Sunday, February 11, 2018

Seventh Circuit Interprets "Ambiguous" Special Needs Trust, Amid Background of Fraud Claims

On February 7, 2018, the Seventh Circuit ruled as a matter of law that language in documentation attempting to create a Special Needs Trust was ambiguous.  In its decision in National Foundation for Special Needs Integrity, Inc. v. Reese, the Court resolved the ambiguity in favor of the children of the Missouri woman who had established the trust, using proceeds of her personal injury settlement. 

The Court, with jurisdiction that appeared to be based on diversity, ordered an Indiana foundation that was named as the trustee of the account to reimburse the estate of the deceased Missouri woman.  The amount awarded is more than $243K, plus prejudgment interest.  The decision by itself is interesting, especially as it touches on issues such as the intention of the settlor, a defense of laches and the roles of a law office or others in counseling the Missouri woman, who was reportedly unable to read, on how to complete the trust documents.  Even more interesting is news indicating that the foundation was created by "a suspended Indiana attorney facing charges that he stole from other clients' trusts." See The Indiana Lawyer's report on Seventh Circuit Reverses, Orders Special Needs Trust Group to Pay Estate.

In the lawsuit, the foundation argued it was entitled to keep the funds designated in the trust, based on a variety of theories including laches; the laches defense failed when the court, in an extended footnote, observed there was no evidence the foundation ever notified the woman's personal representative of outstanding trust amounts, allowing the PR to believe that any proceeds had been used to reimburse the state for Medicaid expenditures.  Instead, the court concluded the foundation simply transferred portions of the mother's account into other accounts, which might have been permitted under certain guidelines, if it had been clear the trust was intended to be a "pooled" special needs trust.   

For another "great and timely" discussion (I have that description on good authority!) of the Foundation v. Reese case, see Arizona lawyer Robert Fleming's newsletter here.  As Robert says, "the background story . . . reinforces the need for transparency and disclosure in pooled special needs trust administration -- and in fact, in all special needs trust management."

February 11, 2018 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 29, 2018

California Healthline Reports: Doctor Groups Dropping Opposition to Aid in Dying for Terminally Ill

California Healthline reports a shift in doctors' views on support for medical aid in dying, with the Massachusetts Medical Society becoming the latest chapter of the American Medical Association to drop its past opposition and to adopt a "neutral" position on medical aid in dying

From the Healthline report:  

When the end draws near, Dr. Roger Kligler, a retired physician with incurable, metastatic prostate cancer, wants the option to use a lethal prescription to die peacefully in his sleep. As he fights for the legal right to do that, an influential doctors group in Massachusetts has agreed to stop trying to block the way.

 

Kligler, who lives in Falmouth, Mass., serves as one of the public faces for the national movement supporting medical aid in dying, which allows terminally ill people who are expected to die within six months to request a doctor’s prescription for medication to end their lives. Efforts to expand the practice, which is legal in six states and Washington, D.C., have met with powerful resistance from religious groups, disability advocates and the medical establishment.

 

But in Massachusetts and other states, doctors groups are dropping their opposition — a move that advocates and opponents agree helps pave the way to legalization of physician-assisted death.

 

The American Medical Association, the dominant voice for doctors nationwide, opposes allowing doctors to prescribe life-ending medications at a patient’s request, calling it “fundamentally incompatible with the physician’s role as healer.” 

 

But in December, the Massachusetts Medical Society became the 10th chapter of the AMA to drop its opposition and take a neutral stance on medical aid in dying.

The California Medical Association  ended its opposition to physician aid in dying in 2015,  and new laws followed there in 2016, along with new laws enacted in Colorado and Washington D.C.    The article also predicts that changing physician opinions are playing roles in New York.  For more read: As Doctors Drop Opposition, Aid-in-Dying Advocates Target Next Battleground States.

 

January 29, 2018 in Advance Directives/End-of-Life, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, January 26, 2018

New Mexico Legislature Considers Comprehensive Reform of Guardianship Laws, Following Fraud & Embezzlement Scandals

In a bipartisan effort, two New Mexico state senators have introduced Senate Bill 19 -- some 187 pages in length -- in an effort to completely overhaul the state's laws governing guardianships in New Mexico.  The proposed changes, which largely track the Uniform Law Commission's recommendations for "Guardianship, Conservatorship and Other Protective Arrangements," will make such proceedings open to the public and require more notification of family members about the process.  The reform follows high-profile scandals involving two companies that are alleged to have "embezzled millions of dollars of client funds," while appointed-guardians also sometimes restricted family access to their wards.

Hearings on the bill began on January 25, 2018, during the regular 30-day session of the legislature.  From the Albuquerque Journal's coverage on the reforms:

Under the bill pending at the Roundhouse, legal guardians would not be able to bar visitors – both in person and via letters and emails – unless they could show the visit would pose significant risk to the individual or if authorized to do so by a court order.

 

[State Senator and Co-Sponsor of SB 19 Jim White] said the legislation does not call for any additional funding to be appropriated, though it could shift some money from the state guardianship commission to the courts for administrative duties. His bill is the only bill filed so far on the issue of guardianships, though others could be introduced in the coming weeks.

 

Meanwhile, the proposed law would also permit bonds to be required of conservators – a protection already proposed by the New Mexico guardianship commission and recently put into place by district judges in Albuquerque.

For more on the criminal charges filed against executives at Ayudando Gaurdians Inc. and Desert State Life Management, read Who Guards the Guardians? by Colleen Heild. 

January 26, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 25, 2018

Netherlands: Examining Physician's Actions in Euthanasia Death of 74-Year Old Woman with Dementia

As my blogging colleague Becky Morgan has highlighted in two of her posts this week, about a February conference at Hastings and recent proposals for "dementia advance directives," end-of-life decisions are increasingly high-profile topics for those working in law, medicine and ethics.  Add to this the case under review in the Netherlands, where a physician described as a "nursing home doctor" performed euthanasia for a 74-year old woman with "severe dementia." A Dutch law legalizing euthanasia, that came into effect in 2002 and that was recently the subject of new "guidelines for performing euthanasia on people with severe dementia," is also under review.  From Dutch News in September 2017:

The case centres on a 74-year-old woman, who was diagnosed with dementia five years ago. At the time she completed a living will, saying she did not want to go into a home and that she wished to die when she considered the time was right. After her condition deteriorated, she was placed in a nursing home where she became fearful and angry and took to wandering through the corridors at night.The nursing home doctor reviewed her case and decided that the woman was suffering unbearably, which would justify her wish to die.

 

The doctor put a drug designed to make her sleep into her coffee which is against the rules. She also pressed ahead with inserting a drip into the woman’s arm despite her protests and asked her family to hold her down, according to the official report on the death. This too contravenes the guidelines. Once the public prosecution department has finished its investigation it will decide whether or not the doctor, a specialist in geriatric medicine, should face criminal charges.

In reading articles about this matter, I'm struck by how often the articles (and my own post here) draw attention to the woman's age, comparatively "young" at 74, as well as the fact that her euthanasia directive written five years earlier also expressed her wish not to leave her home.  If an individual is younger -- with dementia -- does that reduce society's willingness to "allow" aid in dying? If individuals are older -- and what age is old enough -- is it less controversial? And is a family bound by the individual's wishes not to leave her home?  Tough questions, indeed.

This case has also drawn attention in commentary in the US, including a January 24, 2018  Washington Post piece with the provocative title, How Many Botched Cases Would It Take to End Euthanasia of the Vulnerable?   

January 25, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, International | Permalink | Comments (0)

Wednesday, January 24, 2018

What to Do About Unlicensed Care Facilities? The Hawaii Issue

According to reports from Hawaii media, the state has a growing number of unlicensed long-term care facilities for the elderly and disabled.  One critic describes the problem as facilities that have "gone rogue."  I strongly suspect that Hawaii isn't alone on the issue, where providers operate in the shadows of the law, seeking to avoid regulations setting minimum standards, authorizing inspections and implementing other state oversight. Operators push back on regulation, citing the costs of compliance.  Certainly, I've seen issues in my own state of Pennsylvania, where some operators attempt to change their names or identities to avoid whatever is viewed as the latest or most demanding regulations.  I remembering watching as an employee of one long-time, respected provider of "assisted living," chipped those words off the granite sign at the front of the property, part of his boss's effort to avoid Pennsylvania's then "new" regulation of assisted living operations.

Legislators in Hawaii have introduced new legislation in an attempt to plug the oversight holes, but operators are pushing back:

Care home operators, case managers, industry regulators and others filled a conference room Monday at the [Hawaii] Capitol for a tense briefing about the consumer protection, fairness and enforcement issues that these unregulated facilities present.

 

Rep. John Mizuno, chair of the Health and Human Services Committee, said he and health officials have crafted a bill that they hope cracks down on the problem. “We cannot lose any more kupuna,” he said. “No one else dies. That’s it.” 

 

The situation has gotten to the point that some health officials are worried that Hawaii’s rapidly aging population may end up with unsafe options for their care. “If the Legislature is unable to stop this trend, more licensed facilities will drop out and this will place more seniors at risk,” said John McDermott, who has served as Hawaii’s long-term care ombudsman since 1998.

By the way, "kupuna" is a Hawaiian word for elders, grandparents or other older persons. For more information, read "Why Hawaii's Unlicensed Elder Care Industry Is Out of Control," by Nathan Eagle," and review HB 1911, which seeks to authorize Hawaii's Department of Health to investigate care facilities reporting to be operating without an appropriate certificate or license.

January 24, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Tuesday, January 23, 2018

Physician-Assisted Death: Ethical Debates, Professional Challenges, Societal Questions

The Hastings Center has announced an upcoming public workshop on February 12-13, 2018 in Washington, DC.  Physician-Assisted Death: Ethical Debates, Professional Challenges, Societal Questions will explore several topics.  The website explains

What is known about the access to and practice of physician-assisted death in the United States and in other countries? In U.S. jurisdictions where it is legal, who makes use of this provision? What are the experiences of health professionals? Who is vulnerable? These are some of the questions that will be explored at “Physician-Assisted Death: Scanning the Landscape and Potential Approaches, a public workshop organized by the Board on Health Sciences Policy of the National Academies of Science, Engineering, and Medicine. Hastings Center research scholar Nancy Berlinger is on the planning committee for the workshop, which will take place in Washington, D.C., on February 12 and 13.

“Ethicists, clinicians, patients and their families debate whether physician-assisted death ought to be a legal option for patients,” states the National Academies board in explaining the background and objectives of the workshop. “While public opinion is divided, and public policy debates include moral, ethical, and policy considerations, a demand for physician-assisted death still persists among some patients, and the inconsistent legal terrain leaves a number of questions and challenges for health care providers to navigate when presented with these patients.” . . . At the National Academies workshop, [Berlinger] will chair a session on data and lessons from other nations, including Canada, which implemented its PAD provision nationally in 2016. . . .

January 23, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

A History of Public Pensions and Corruption in Pennsylvania

Pennsylvania Attorney Charles Shields and former  Dickinson Law Librarian [now West Virginia Law Librarian] Mark Podvia have teamed to present a provocative history of public pensions and public corruption, using Pennsylvania as the focus.  The first of their two-part series is available in the January 2018 issue of the Pennsylvania Bar Association Quarterly.  For an overview, the authors write:

On June 12, 2017, Pennsylvania Governor  Tom Wolf signed a bill authorizing significant reform of the Commonwealth's public pension system.  The law will replace the current traditional pension system with three 401(k) style options for future state employees and public school teachers.   This is the first article in what will be a two-art series on the laws regulating public pensions and pension forfeitures in the Commonwealth of Pennsylvania.  This part will examine the historical development of public pensions and provide an overview of the public corruption in the Commonwealth [tied to these pension systems]. The second part will examine the adoption and application of the Pennsylvania pension forfeiture law.   

To provide more incentive for our readers to track down this disturbing history, here's a concluding line from part one of the series:

The combination of a corrupt political system with public pension funds -- ranging from local retirement systems, small but with little oversight, to large statewide funds -- created a situation open to graft and corruption..... 

January 23, 2018 in Consumer Information, Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 22, 2018

Increasing Awareness and Understanding of Frontotemporal Dementia

A good friend and Penn State colleague, Dr. Claire Flaherty, a neuropsychologist at Penn State Hershey Medical Center, was part of a recent program explaining frontotemporal dementia, a condition which is often subtle, but nonetheless potentially devastating, especially when misdiagnosed.  Here's the link to the podcast of the program, from a local television station in Pennsylvania. 

 

 

January 22, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science | Permalink | Comments (0)

Friday, January 19, 2018

UPitt Law Prof Larry Frolik Urges Change in Pennsylvania Guardianship Law to Clarify Lawyer's Role in Representing Alleged Incapacitated Persons

Larry Frolik, University of Pittsburgh Law Professor and all-round elder law guru, responds to a 2016 decision by the Pennsylvania Superior Court for In re Sabatino with a strong call for change in existing guardianship laws.  In the abstract for his January 2018 article for the Pennsylvania Bar Association Quarterly on The Role of Counsel for an Alleged Incapacitated Person in Pennsylvania Guardianship Proceedings [currently membership-restricted], he writes:  

When a petition is filed requesting that court find an individual to be incapacitated and appoint a guardian for the individual, the alleged incapacitated person [AIP] has a right to counsel. If the individual does not have counsel, the court may, but is not required to,  appoint counsel. Whether counsel is hired by the [AIP] or appointed by the court, the question arises as to what is the proper role of counsel.  Should counsel act solely as a zealous advocate and attempt to resist the imposition of the guardianship if so directed by the [AIP] or should counsel act in the best interest of the person with counsel making the determination of what is in the person's best interest?

 

A 2016 Superior Court case considered that issue and concluded that if the [AIP] desired not to have a guardian, counsel should so inform the court, but counsel, acting in what counsel believed was the person's best interest, could also tell the court that counsel believed that the person needed a guardian.  That holding is not consistent with the fundamental obligation of counsel to advocate for what the client, the [AIP], desires.  Counsel should not be making an independent determination that the person would be better served if a guardian were to be appointed.  The decisions as to whether an [AIP] is legally incapacitated and, if so, whether the appointment of a guardian is appropriate, are decisions that only a court should make.  

 

The Pennsylvania Legislature should amend the law of guardianship to clarify that the role of counsel for an [AIP] is that of a zealous advocate, and that counsel should not act in what counsel believes are the person's best interest.  If the Legislature does not act, in the future courts should reexamine the issue and rule that counsel should act solely as a zealous advocate and not attempt to promote the person's best interest. 

January 19, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 18, 2018

Patient Dumping-By the Health Care Provider

There's been a lot of buzz after that video surfaced of a hospital patient left at a bus stop just in a hospital gown. NPR ran a follow up story, Why Was A Baltimore Patient Discharged At A Bus Stop In Just A Gown?  The president and CEO of the hospital in a subsequent press conference indicated that the event was isolated and those involved would answer for their actions.  There is a lot we don't know about the story (and some we may never know because of privacy issues). CBS then ran a story from the mother of the patient. In the story Mother calls hospital "callous and heartless" for leaving her daughter in the cold, the mother explains that her daughter, the patient, has mental illness.

How is this different, if at all, than granny dumping, where a family member might abandon an elder relative at the emergency room? I did a quick google search to see if I turned up any recent articles on granny dumping, and didn't really find much, except for this one from a year ago, Japanese people who can't afford elder care are reviving a practice known as 'granny dumping'.

What's your take? Is this not specifically happening much, if at all, in the US any more?

 

January 18, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Stunning Rate Increases Likely to Continue for Owners of Long-Care Insurance Policies

The Wall Street Journal has an update article this week on the financial  health of the long-term care insurance industry, detailing recent rate increases and reminding us that even with contraction of this specialized market for sellers of new policies, there are still more than 7 million policies affected by the inadequate pricing structure issues.  

Steep rate increases that many policyholders never saw coming are confronting them with an awful choice: Come up with the money to pay more—or walk away from their coverage.

 

“Never in our wildest imagination did we consider that the company would double the premium,” says Sally Wylie, 67, a retired learning specialist who lives on Vinalhaven Island, Maine.

 

In the past two years, CNA FinancialCorp. has increased the annual long-term-care insurance bill for Ms. Wylie and her husband by more than 90% to $4,831. They bought the policies in 2008, which promise future benefits of as much as $268,275 per person. The Wylies are bracing for more increases.

Even with the rate increases, companies are looking at losses in anticipation of claims as existing policy holders are now aging into a claims mode. General Electronic Company, has attempted to reassure shareholders about the impact of its LTCI business on profits.  

Only a dozen or so insurers still sell the coverage, down from more than 100. General ElectricCo. said Tuesday it would take a pretax charge of $9.5 billion, mostly because of long-term-care policies sold in the 1980s and 1990s. Since 2007, other companies have taken $10.5 billion in pretax earnings charges to boost reserves for future claims, according to analysts at investment bank Evercore ISI. . . . 

 

Almost every insurer in the business badly underestimated how many claims would be filed and how long people would draw payments before dying. People are living and keeping their policies much longer than expected. After the financial crisis hit, nine years of ultralow interest rates also left insurers with far lower investment returns than they needed to pay those claims.

 

Long-term-care insurers barreled into the business even though their actuaries didn’t have a long record of data to draw on when setting prices. Looking back now, some executives say marketing policies on a “level premium” basis also left insurers with a disastrously slim margin of error.

 

“We never should have done it, and the regulators never should have allowed it,” Thomas McInerney, president and chief executive ofGenworth FinancialInc. since 2013, says of the pricing strategy. “That’s crazy.”

For more of this detailed article, see  Millions Brought Insurance to Cover Retirement Health Costs.  Now They Face an Awful Choice.  Our thanks to University of Illinois Law Professor Dick Kaplan and New York attorney Karen Miller for bringing this article to our attention.  

 

January 18, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, January 17, 2018

What Does it Mean to Have a "Perfect Score" on a Cognitive Assessment Test?

I've sat in on dozens of mental acuity screening exams for individuals exhibiting indications of some form of dementia.  

Regarding the "perfect score" reportedly received by President Donald Trump on a mental acuity screening test during his January health exam, it may be helpful to consider what is -- and isn't -- covered by such assessments.  One view is provided in an opinion piece this week in the Washington Post, using history from a criminal case where Brooke Astor's son and an attorney were found guilty of exploiting her alleged mental incapacity.    From the article: 

On its surface, the Montreal Cognitive Assessment (MoCA) test seems pretty easy. Can you draw a three-dimensional cube? Can you identify these various animals? Can you draw a clock? Can you repeat back the phrase, “The cat always hid under the couch when dogs were in the room”? . . . 

 

If you look at the test, it’s pretty hard to see how you could not score a 30. You see a picture of a lion and have to identify it as a lion? That old joke about how the elderly and toddlers are subject to the same indignities seems pertinent here: Is this really the bar that needs to be met to demonstrate full mental capabilities?

 

Well, according to those who study dementia and other mental deterioration, yes.

 

In 2009, I spent six months serving on a jury in the state of New York that was asked to judge the guilt or innocence of a man named Anthony Marshall. Marshall was the son of Brooke Astor, a New York socialite and heiress to the much-diminished Astor fortune. If you’ve ever traveled to New York, you’ve encountered the name: Astor Place, the Waldorf-Astoria or the Astoria neighborhood in Queens. Marshall was accused of having taken advantage of Astor’s diminished mental state to change her will without her being aware of the changes made. Ultimately, the 12 members of the jury found Marshall guilty of several charges.

 

Over the course of that trial, we were presented with a great deal of information about how doctors assess the mental capabilities of a patient. This was critical to the prosecution; were they not able to prove that Astor’s mental state was diminished, it undercut their argument that Marshall had acted without his mother’s consent. As such, expert witnesses testified about their personal examinations of Astor and others spoke to the reliability of the tests.

 

Central to that case was one of the components of the MoCA test: drawing a clock. Astor was asked repeatedly to draw analog clocks as a test of her mental acuity. On more than one occasion, she was unable to do so properly. . . . 

 

The point is not that the test is easy. The point is that an inability to complete aspects of the test reveals different types of mental decline. The clock test is about executive brain function: memory, planning ahead. The different parts of the MoCA are labeled according to what they test, with the clock test falling under “visuospatial/executive.” Questions about the current year and date are under “orientation.” The request to identify a drawing of a camel is under “naming.” In the test’s scoring instructions, it explains what is covered: “attention and concentration, executive functions, memory, language, visuoconstructional skills, conceptual thinking, calculations and orientation.”

 

It is, as Trump’s doctor noted, a tool for identifying early signs of mental deterioration, like the mental version of a blood sample on which your doctor runs a battery of tests. It’s not the SAT; it’s a screening device.

For more, read Why You May Be Misunderstanding the Mental Test that Trump Passed with Flying Colors, by Philip Bump.

January 17, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Science | Permalink | Comments (0)

FINRA FAQ for Elder Financial Exploitation

FINRA has released FAQs specifically to address elder financial exploitation. Frequently Asked Questions Regarding FINRA Rules Relating to Financial Exploitation of Seniors  explains the new rules that take effect on February 5, 2018.  "[T]he SEC approved: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person (“trusted contact”) for a customer’s account."(citations omitted) FAQs 1 and 2 deal with temporary holds, 3 with trusted contacts, and 4 with disclosures.  The FAQ are available here.

January 17, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Other, Property Management | Permalink

Tuesday, January 16, 2018

Choice and Customer Service in Senior Living

My sister and I have been interviewing locations for several weeks as possible residential settings for our mother, especially as she is no longer able to handle the stairs in her two-story home, but feels trapped by not being able to choose on her own where to walk.  We know that the best way to approach this task is in small doses, and to do it before there is an emergency that limits choices.  This is actually our second go-round, as we also did this with Mom when we were looking at a place for Dad almost 5  years ago.  But we have been very struck by the changes in the marketplace in just that short period of time:

  1. There are many new options, both large and small, that have come into being in just the last five or fewer years.  We have looked at "classic" versions of continuing care communities, as well as what I would call "ala carte" pricing options for communities that offer a wide range of care alternatives, but each for a separate, escalating price and with no assurances of a placement. We've looked at both modest settings and high end "assisted living centers" that are so new the paint has not quite dried. But most of all, what we have found ourselves focusing on are smaller group homes, licensed under that state's law for "assisted living," and under that law the care includes almost all necessary care, other than certain so-called skilled services (such as catheters, feeding tubes, or I.V. hydration).  We liked the small group setting because they often were in a neighborhood that would make our mother feel at home, while still offering a purposeful renovation that included carefully designed toilets, showers and flooring for easier movement.  The price range is stunningly broad between these options, too.
  2. Doctors are not always the best advisors on choices.  We have found that even though our mother has a wonderful primary care doctor, and even though that doctor makes it known that most of his patients are older, he did not seem to be aware that there are group home options.  He kept telling us we'd need a "skilled care nursing home."  But, as Mom has a pretty detailed end-of-live directive that rejects feeding tubes, and similar skilled care interventions, it seems clear to us that we can look at a well-run facility licensed for assisted living that will be able to provide appropriate care through her last days.  
  3. A lot of the smaller places are accessed through what I would call "brokers."  When you do internet research, the odds are that your first contacts will be with some kind of "finder."  Most of these are paid by the facilities, rather than the families conducting the searches.  As such, there is the clear potential for them to steer families to "their" facility clients.  I know from insiders in the industry that the fees are often the equivalent of one month's fee at the chosen location.  While not necessarily a negative, as a good broker is only successful if he or she really knows the available inventory of residential options, the fees are something that can dramatically impact smaller group homes that are operating on a narrower margin.

Additional trends we noticed? We discovered that a small group home that appears to be a  "family" operation,  may actually be part of a chain of homes with a single corporate owner.  On the other hand, at several of the places we visited, we learned the owner had recently purchased another house in the same neighborhood, and was in the process of a second renovation.  Also, as for staffing, we noticed that in certain parts of the city, all of the caregivers were immigrants from the same country, whether Poland or Pakistan or elsewhere.  Another reminder that realistic immigration policies are a key component to senior living. 

Finally, probably our strongest reaction was to differences in what can only be called old fashioned "customer service."  One "famous," established  CCRC completely lost our interest when the person at the front desk never made direct eye contact with us, instead keeping one hand on a cell phone and the other hand on a very dirty "wet wipe" she said she was using to clean surfaces because it was "flu season." It didn't help that we went through three different people to find one who could give us a tour during a scheduled visit (the first two were so new they didn't have knowledge of the full campus.) At the smaller group homes, we definitely noticed when the persons we met with greeted current residents by name as they gave us a tour.  Also, did they know the names of their own staff members  -- and did they introduce us to each other?  When a trip hazard was lying in wait on the floor, did they pick it up -- or merely avoid it?  

In addition to asking about staffing ratios and open visiting hours, we wanted to know about how long each of the staff members we met had worked at the particular place.   Finally, our whole family likes dogs and therefore it was a plus when we found a place that had a "house dog" that the residents clearly loved, but we recognize that not every place can handle the extra work it takes to maintain a pet on site.  

A sad irony is that it is unlikely our mother will live in the same care setting that was so perfect for our father.  That place is an assisted living center with four cottages, purpose built for Alzheimer's care, on a five acre setting.  But it has become clear to us that even though Mom was the one who chose it for Dad, and it is a wonderful place, with people we still love, our mother probably doesn't want it for herself.  In the last few months of our father's residence there before his death, she visited less and less often, and we came to realize she had "already" rejected it for herself.  It wasn't about memories of Dad; rather, it was about what it meant to "also" have the same cognitive impairment.  The director, who has become a good friend of mine, said that is not unusual -- that even successful residential settings are rarely chosen by families for second or third placements because the next loved one can be hypersensitive to the reality of that choice.  Senior care living -- a tough business in which to generate repeat business. 

January 16, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (1)

Monday, January 15, 2018

Filial Friday on Monday: PA Supreme Court Agrees to Hear Further Appeal of "Reverse" Filial Support Case

Regular readers of this Blog will remember that we have been following the case of Melmark Inc. v. Schutt, wherein a residential facility for disabled children and adults in Pennsylvania, has sought to hold 70+ year-old New Jersey parents liable for approximately 13 months of care the facility provided for their autistic adult son after New Jersey stopped public payments for his support.  The parents were successful at the trial and intermediate courts of appeal in Pennsylvania, arguing that New Jersey, not Pennsylvania law controlled the issue of any filial obligation.  Pennsylvania statutory law imposes liability on certain family members, without regard to age, to cover costs of care provided to "indigent" children or parents, while New Jersey's filial support statute limits obligations for older adults, for "any person 55 years or over," to support for minor children or spouses.  See N.J.S.A. Section 44:1-140(c) (Relatives Chargeable).   The unpaid costs in question totaled more than $200,000, before the Melmark took it upon itself to take the son back to New Jersey, dropping him off at a local hospital.

On December 26, 2017, the Pennsylvania Supreme Court granted the facility's request for further appeal on the following issues:

1. Whether the Superior Court erred as a matter of law in finding that New Jersey’s filial support statute, rather than Pennsylvania’s, applied
in this matter where there is no conflict between the New Jersey statute and Pennsylvania’s statute under the facts of this case?


2. Whether the Superior Court erred in finding that New Jersey has a greater interest in the application of its filial support statute where, inter alia, all of the relevant contacts, with the exception of the residency of Respondents Clarence and Barbara Schutt, are with Pennsylvania; where the Schutts took affirmative actions to keep their highly disabled son in a Pennsylvania nonprofit residential and therapeutic institution, Petitioner Melmark, Inc., with the avowed aim of Melmark funding his care for his “entire life,” including manipulating the Pennsylvania and New Jersey legal systems to prevent his return to New Jersey; and where the Superior Court’s decision results in Melmark being entirely uncompensated for providing an extended period of vital, intensive care for the Schutts’ son?


3. Whether the Superior Court erred in finding that the lower court properly denied relief on Melmark's claims for quantum meruit and unjust enrichment? 

I've been teaching Conflicts of Law for many years and I actually used a variation on this problem for the final exam in my Fall 2017 course.  As was true in the lower courts in the Melmark case, most of my students came to the conclusion that under the forum's choice of law rules, the state with the most substantial relationship to the issue of parental liability for statutory support was the state where the parents and son were residents, here New Jersey.  

My best guess is that the Pennsylvania Supreme Court may go more deeply into  the common law claims for "quantum meruit and unjust enrichment" (which in Pennsylvania are usually treated as alternative names for the same causes of action, sometimes termed "quasi-contract" claims). 

As I've been saying for months now, this is a tough case for everyone.  

January 15, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)