Wednesday, January 29, 2014

ABA Section on Dispute Resolution Spring Conference Features Session "New Options for Elders and Their Families: Dispute Resolution for High Conflict Cases,"

The ABA Section of Dispute Resolution will hold its Spring Conference April 2-5 in Miami. Details here.

One of the many conference events will be a session on "New Options for Elders and Their Families: Dispute Resolution for High Conflict Cases," on Thursday April 3 at 4:30 pm. The speakers and session description are below:

  • Sue Bronson, New Prospects, Milwaukee, WI
  • Linda Fieldstone, Lawson E. Thomas Courthouse Center, Miami, FL
  • Siri Gottlieb, The Cooperative Parenting Center, Ann Arbor, MI

As the baby boomers age, the number of families that develop conflict over the care of an elder also increases. Using parenting coordination as a model, the Florida Chapter of AFCC has joined the Association of Conflict Resolution in the development of a dispute resolution option to address the high conflict in these cases. In an unprecedented effort involving over 20 Florida Statewide organizations and 25 national/Canadian organizations, this project fills a gap in ADR processes. It will help address the incoming influx of guardianship cases where conflict becomes the driving force of the family and mediation is unsuccessful.

January 29, 2014 in Ethical Issues, Programs/CLEs | Permalink | TrackBack (0)

Tuesday, January 28, 2014

"Whistleblower Laws in the 21st Century" - Penn State Dickinson Program on March 20

Senior Care -- in all of its guises -- is Big Business.  And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars.  For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia

While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.

Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania. Trickett Hall, Penn State Dickinson School of Law, Carlisle

The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law  in St. Louis;  Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.    

Stay tuned for registration details, including availability of CLE credits.

January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Just Another Whistleblower Settlement in the Elder Care World -- for $30 Million?

The Justice Department has announced the settlement of a Whistleblower case, involving allegations that RehabCare Group Inc., RehabCare Group East Inc. and Rehab Systems of Missouri, plus a management company, Health Systems Inc., violated the False Claims Act by engaging in a kickback scheme related to the referral of clients between nursing homes and therapy services. 

Ho-hum.  Just another settlement.  No admissions of wrongdoing.  Promises that they won't do in the future what they say they didn't do in the past.  No reason to put another Whistleblower settlement affecting elder care services on the front page of any newspapers, or make it the lead story on the nightly news, right?

But hey, the settlement figure was $30 million dollars.  Thirty ... Million ... Dollars.  Are we so innured to Whistleblower cases in this country that an agreement to pay $30 million dollars is viewed merely as a cost of doing business?  Do we simply accept it as an extra "tax" on the price of nursing home care -- or  pharmaceutical drug sales --  or hospice care -- just to name three industries that have agreed to pay multi-millions in settlement of False Claim Act suits during the last year? 

I suppose the Treasury is modestly pleased to be recovering payments to offset Medicare or Medicaid costs that are constantly under assault by legislators professing concern about the size of the budget devoted to elder care. The Justice Department says that in the last five years, it "has recovered more than $17.1 billion through False Claims Act cases, with more than $12.2 billion of that amount recovered in cases involving fraud against federal health care programs." 

But what about the persons receiving the care?   How do these these non-admissions of fault, combined with additional costs that surely must reappear in future billings to the public, affect the elders and disabled persons depending on these companies for care? 

January 24, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

Update on the Dispute about Elders "Overstaying" Their Welcome at McDonald's in Queens

Last week I wrote about a dispute involving a gathering spot for elderly Koreans at a McDonald's restaurant in Flushing, New York.  The owners were trying to eject the seniors, arguing that they weren't ordering food and had turned the seating into a defacto senior center that wasn't pleasing to other patrons.  In response, supporters of the seniors were calling for a boycott. 

On Sunday, communities leaders announced a settlement of the dispute, with the owner agreeing the seniors can stay as long they want, except from 11 a.m. to 3 p.m. 

Stacy Torres, a PhD student at NYU, wrote an op-ed for the New York Times on the controversy, arguing we should encourage public-private partnerships that benefit older adults and businesses.  She concludes: "Battles over public spaces are as old as the city itself, but we have an opportunity to reimagine overlooked resources like McDonald's as new generations of older people find themselves needing places to hang out."

January 22, 2014 in Ethical Issues, Food and Drink | Permalink | Comments (0) | TrackBack (0)

Should We Teach Law Students "How to Sell Law," Including Elder Law?

Recently, a long-time friend, a successful business person, sent me a link to an Inc. article about an interesting course at the University of Chicago called "Entrepreneurial Selling." The course was taught in the Business School and the Inc. article included the course syllabus.  My friend asked "should lawyers -- and by extension law students -- be taking this kind of course?"  Reading the first line of the article made me shudder just a little, because it made the distinction between learning "how to sell," versus mere "marketing," especially for small businesses.  But, the more I read, the more I was intrigued.  My friend (a non-lawyer) argued that selling is the art of effective communication and lawyers are or should be all about effective communication. 

That got me thinking, and I realized that some of the most effective "sellers" of law are Elder Law attorneys, who regularly engage with the public in social and business contexts, always with their eyes open for new relationships and new clients.  As examples, I've witnessed (and participated in) an interesting variety of educational seminars for the public or other professionals that were sponsored by Elder Law firms or Elder Law attorneys. 

Elder Law is still a relatively young (and evolving) field.  Most members of the public have little understanding of what might be covered by the term.  Indeed, two summers ago, a group of law students and I were sharply reminded of that fact while doing a state-wide research project with focus groups of older adults and their families, asking them to talk about access to trustworthy legal advice and information. We frequently encountered people who thought of Elder Law as "writing wills for old people," or similar amusing, if worrisome, definitions. Thus, "selling" the field is perhaps especially important and necessary. 

But, of course, that leads to more questions. Is there an ethical model for "selling" a particular field of law, particularly a field that may not be well understood by the potential client base?  Is so, what are the elements of that model? 

What is necessary, for example, to avoid the Consumer Financial Protection Bureau's concerns about manipulation of potential clients, as addressed in an earlier post on this blog about investment products marketed to seniors?  I'm tempted to say that one possible element of an ethical model would be to de-couple the educational programming from the client-retention meetings, but perhaps I'm being very naive, trapped in my ivory tower.

Silvia Hodges, who runs a blog subtitled The Legal Firm as a Business,  recently published "I Didn't Go to Law School to Become a Salesperson -- The Development of Marketing in Law Firms."  in the Georgetown Journal of Legal Ethics.   She argues that "lawyers [often] mature in their professions without marketing training and therefore are ... ill-prepared to handle both the business and the professional part of their profession simultaneously."  She refers to the problem as "market disorientation," where lawyers "consistently underrate the importance of clients' selection clues and criteria."  She concludes that law firms "need to aspire to have marketing embedded in their firm culture, independent of whether the firm is a professional partnership or a managed professional business." 

Perhaps the first step to that culture change should occur in law school, and thus "selling law" should also be addressed specifically in Elder Law classes. 

January 22, 2014 in Current Affairs, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Geriatric Care Management and Boomers

Recently, a Pennsylvania friend was describing her aging father's situation in one of the sunshine states.  When her father, a widower, began to show signs of diminishing capacity, the adult children discussed options, including moving Dad closer to one of them. But, he liked his retirement spot in the sunshine, had friends, and, in fact, there were more care options where he was living.

Eventually, my friend hired a local geriatric care manager in the sunshine state, with the cost shared by her and two siblings.  In our most recent conversation, my friend described that decision as perhaps the best move the family made.  She said that at first she had a hard time getting her father's facility to accept the fact that they should call the care manager first.  But having an informed person -- an experienced advocate for her father -- in the community has often been essential, as questions arose over insurance, level of care, medications, transfers between facilities, nutrition and whether to hospitalize. My friend still makes regular trips to visit her father, but the local manager meant there were fewer emergency trips.

Geriatric care managers, sometimes called care coordinators, elder care coordinators, or professional care managers, could -- and perhaps should -- be an increasingly important part of planning.  One of the questions about this emerging profession is credentials.  At least two national trade groups exist, including the National Association for Professional Geriatric Care Managers (NAPGCM) and the National Academy of Certified Care Managers (NACCM).

In addition, law firms specializing in elder law frequently offer care management services, often employing non-lawyer professionals as part of the team.

Geriatric care management may be very important to "elder boomers," both as they become seniors caring for their even-more-senior-aged parents, and as future care-needing individuals themselves.  Unfortunately, a big question may be cost.  Medicare and Medicaid -- and most insurance -- does not cover the cost of care management.  As reported by the New York Times a few years ago in "Care Coordination: Too Expensive for Medicare?," attempts to secure public funding for care managers has been stymied by studies that show care management does not necessarily reduce the costs of care. 

Nonetheless, such coordination may be particularly important in a nation where family members often live far apart.  In my friend's situation, she expected the need to last for a couple of years, but in fact, her father is approaching age 98, and the "healthy" relationship between the children, their father and his care coordinator has lasted for more than 10 years. 

January 21, 2014 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

NORC + Mickey D's = Problem?

Recently I blogged about NORCs (for Naturally Recurring Retirement Communities) and Villages, two community-based models for aging in place that are popping up around the country, often in larger cities.  Apparently the label "NORC" could also be applied to a not-so "natural" retirement setting -- your local McDonald's restaurant. 

According to the New York Times, that's what's been happening in Flushing, New York, where a group of elderly Korean men and women have been gathering to socialize, starting as early as 5 a.m. and staying on well into the evening hours.   The restaurant owners were not happy, especially as the size of the group increased and members weren't placing orders. Management eventually called the police, seeking removal of those who seemingly ignored posted time limits, requests to vacate or stronger language.  Now politicians and television cameras are involved:

"Whether the Koreans, many in their 70s and 80s, were right or wrong to spend their days at the restaurant, arriving as early as 5 a.m. and paying as little as $1.09 for a cup of coffee during their daylong stays, seemed not to matter much to the small but vocal group protesting against McDonald’s before an assortment of television cameras and photographers. What seemed to nettle the Korean community most was the perception that in asking police officers to remove the group, the business had been rude."

The New York Times coverage of the on-going dispute seems to suggest that heritage and cultural traditions play a part in the "imbroglio," interviewing "Officer Hee-Jin Park-Dance from the Community Affairs Bureau of the Police Department [who] works out of Flushing. She said: “In Korea or any other Asian cultures, the elder is treated like gold. When you see an elder you get up, you give a seat right away. It’s a sign of respect.”

January 17, 2014 in Ethical Issues, Food and Drink | Permalink | Comments (0) | TrackBack (0)

Thursday, January 16, 2014

"Don't Waste Good Money on Oak Caskets and Brass Handles...."

Hayley is investigating DIY funerals. Who is Hayley?  Of course, she's a character on the British night-time soap opera, Coronation Street (a/k/a "Corrie"), that's been running continuously in the U.K. since 1960.  Hayley doesn't want to "waste good money on oak caskets and brass handles. "  

Here's an essay from the Irish Times, inspired both by the fictional Corrie debate, and preferences expressed by the County Down author's real-life partner, including a discussion of an Irish tradition, the wake. 

I especially like the line from the essay, "She was waked in her own home."   

Thank you, Una Lynch, for sending the link from across the Atlantic!

January 16, 2014 in Consumer Information, Ethical Issues, Other | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Current Research on Widowhood: Devastation and Human Resilience

The Journals of Gerontology (Psychological Sciences and Social Sciences - Series B) for January 2014 arrived on my desk this week. It is a special issue on widowhood and bereavement.  An opening editorial by Sociology Professor Gary R. Lee (Bowling Green State University) provides an enticing introduction to "Current Research on Widowhood: Devastation and Human Resilience."  He begins:

"As of 2010, there were more than 14 million widowed persons in the U.S. population -- nearly 3 million men and well more than 11 million women (U.S. Bureau of Census, 2012 Table 57).  About 13% of men and about 40% of women aged 65 and older, and 57% of women aged 75 and older, are widows. This is, of course, just a single snapshot in time; nearly half of the population necessarily experience widowhood during their lifetimes.  The only ways to of avoiding it are to never marry, to divorce and never remarry, or to predecease your spouse....


Over the years, I have noted with interest how many articles on widowhood begin with a citation to Holmes and Rahe (1967) to the effect that widowhood is perhaps the most distressing and difficult experience of people's lives.... But some close scrutiny and some nuanced qualifications may be needed."

After outlining the array of articles in the special issue, Lee concludes:

"We know much more about the consequences of widowhood now than we did when Holmes and Rahe (1967) made their of-cited observations about its devastating effects. It does more than just make people sad; it changes their lives in fundamental ways.  But the real story here may lie in the search for the ways in which widows and widowers manage to cope with the loss of their spouses and adjust to the new realities they must face." 

The table of contents for the issue is available here

January 15, 2014 in Ethical Issues, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Recent Moves to Protect Seniors from Fraud in Sale of Investment Products

A few years ago, one of the more perplexing cases handled by Penn State's Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s. 

The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home.  She was able to talk and communicate; arguably she did not seem impaired.  She was told the product would save on taxes -- a pitch alluring to the frugal woman -- except for the fact that she really didn't need to save on taxes.  

If one lives long enough or has looming care needs even at an earlier age, an individual's post-death estate planning goals can conflict with pre-death care needs. In the clinic client's case, the woman's  annual income was modest, and her total estate was not large enough to trigger other major taxes.  The assets used to fund the annuity were virtually her entire savings.  Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity "early." 

How often does this -- or worse -- happen? 

In "Still No Free Lunch: Recent Regulatory Initiatives to Protect Seniors From Fraud in the Sale of Investment Products," 41 Securities Regulation Law Journal 397 (Winter 2013) (paywall protected; available on Westlaw as 41 No 4 SECRLJ Art 2), attorneys  Ivan B. Knauer and Michele C. Zarychta address recent efforts to prevent or address fraudulent practices by an array of regulatory bodies. The 2013 piece updates their 2008 article (available at 36 No 4 SECRLJ Art 3). They outline several types of fraud and various financial products often marketed specifically to elders.  For example, they observe:

"One of the most pressing concerns of the regulatory entities is the improper -- or at least confusing-- use of 'senior' designations by professionals, implying that a professional has expertise or training in senior-specific issues.  FINRA [the Financial Industry Regulatory Authority] 'Rule of Conduct 2210 prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations or referencing legitimate degrees or designations in a misleading manner.'  Misleading use of such designations may also violate federal securities laws or state laws."

The authors, who are experienced in representation of investment and financial service companies, recognize that business lawyers can help clients recognize the need to "take measures to ensure that their own policies and procedures protect seniors."  "Still No Free Lunch" is a reminder that attorneys who are advisers to companies can and should be a larger part of the solution, rather than be viewed as part of the problem. 

In reading the article, which emphasizes  regulators' programs to "educate" the public, I am struck by the likelihood that a key tipping point occurs when a senior's susceptibility to a manipulative pitch is outweighed by his or her weakened ability to recognize risk, regardless of any fraud-prevention education. That was true, for example, with our clinic's client.  Her life-time frugal nature was still intact; however, her judgment about whether she needed to "save" money on taxes was diminished. More education was not the solution for her, as she had probably lost the ability to appreciate its application.  Indeed, a common marketing practice to seniors -- free lunches or dinners disguised as "educational seminars" -- trades upon that very fact, thus giving rise to the "no free lunch" theme in both articles by authors Knauer and Zarychta.

The authors detail stepped up enforcement efforts, including recent measures by the Consumer Financial Protection Bureau, established in 2010. 

Hat tip to Penn State Dickinson Law Professor Lance Cole, who shared this interesting article.

January 13, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, January 10, 2014

Medicaid Puts New "Wrinkle" on Old Topic of Marriage Penalties

I can remember when tax-savvy couples might plan their wedding dates according to the tax impact, and thus there was talk in political circles about the "Marriage Tax Penalty." 

Recently, one of our Elder Law Prof Blog readers wrote to suggest we post articles about the impact of late-in-life marriage on Medicaid eligibility.  Good idea!  Many might assume that a well-drafted prenuptial agreement should preserve a split in retirement savings.  That assumption could well be dangerous -- in the context of Medicaid.  Here are links to a few recent articles, with brief excerpts to whet the appetite for reading more:

Late Life Love (Part II), by Monica Franklin, 49 Tennessee Bar Journal 30 (Feb. 2013):

"When discussing prenuptial agreements and marriage, we need to advise our clients that if one spouse needs Medicaid to pay for long-term care, the assets of both spouses will be considered by the Medicaid agency ([Tennessee] Department of Human Services, DHS). However, if the couple chooses cohabitation, DHS only considers the assets of the disabled partner. This information is crucial for couples considering late-life marriage."

Paying for Long-Term Care in Illinois, by William Siebers and Zach Hasselbaum, 100 Illinois Bar Journal 536 (October 2012), noting that with changes to Medicaid law, effective in Illinois in 2012:

"Eligibility for long-term care assistance will be denied  [in Illinois] if the community spouse or institutionalized spouse refuses to disclose assets during the application process. Prior to this change, a community spouse with separately owned assets held for at least five years could decline to have those assets considered in the application process for the institutionalized spouse.  This scenario commonly arose in second marriage situations. . . . "

Gray Divorce and Remarriage, by William DaSilva and Steven Eisman, 83 New York State Bar Journal 26 (July/August 2011):

"Another growing trend in the practice of elder law -- relating to both matrimonial law and health care planning -- is the use of so-called 'Medicaid divorces.' In fact, the use of Medicaid gifting and Medicaid planning received judicial sanction from New York's highest court in 2000 in [the case of] In re Shah, [95 NY 2d 148 (2000)].  In this type of divorce, the 'spouse in the community' ... stands to lose a lifetime's worth of savings unless a health care plan is devised that provides care for the ill or incapacitated spouse and simultaneously protects the assets of the spouse in the community so that both spouses do not end up impoverished wards of the state.  A prenuptial agreement alone will not defeat a claim of Medicaid."

In my admittedly quick search for articles on the topic of prenuptial agreements and Medicaid, I did not find a comprehensive discussion by academics or law students in an academic law review. Rather, as suggested by the above citations, the articles I found were all state specific, from state bar journals.  Perhaps one of our law school colleagues has a work-in-progress or article to share?  Or, alternatively, perhaps some of our academic readers are looking for a good, comprehensive research topic for the future.

For our lay readers, this is a good opportunity to remind you this Blog is not intended to be a source of legal advice for specific issues.  Of course, we do recommend that you consult with an experienced elder law attorney for state-specific advice!  

January 10, 2014 in Ethical Issues, Health Care/Long Term Care, Medicaid, Property Management, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 7, 2014

Ethics In the Practice of Elder Law: Book by Flowers & Morgan

Roberta FlowersI love book stores, and at the AALS Annual Meeting the next best thing is the book publishers' booths.  I always ask representatives about "what's new" in aging.  This year the answer was a book I should have read already, especially as it is co-authored by Elder Law Prof Blogger Becky Morgan and her Stetson colleague, Roberta Flowers.  It was great to have my new copy with me for my train ride home through the frozen mid-Atlantic corridor. Rebecca Morgan

Their book, Ethics in the Practice of Elder Law, published in 2013 by the American Bar Association, is an important reference book for students and practitioners. It also strikes me as the kind of book that could support an entire day of CLE programming and discussion on professional responsibilities, not just for elder law attorneys but for lawyers in family or corporate practices, where there is a clear potential for questions of conflict of interest.  The organization of the book is interesting, too, with short opening fact patterns and highlighted questions introducing each chapter. The topics include:

  1. Where to Go for Guidance
  2. Who Is the Client?
  3. Who Can I Talk To?
  4. Who Can I Represent?
  5. Representing Clients Who May Have Diminished Capacity
  6. Ethical Issues in a Guardianship
  7. Whom Do I Represent in Complex Fiduciary Representation?
  8. To Litigate or Not to Litigate - That Is the Question
  9. Ancillary Services and Marketing

That last chapter is a good example of an important discussion topic for practicing lawyers.  One of the trends in U.S. elder practice is the one-stop shop, where a lawyer might also offer ancillary services or products, such as annuities used by families in Medicaid planning.  The authors caution that an attorney must be careful to identify and carefully disclose whether the attorney has a "financial interest" in a service or product recommended for a client. Throughout the book, they provide state-specific sources of ethics analysis.  For example, they cite and quote from state ethics opinions regarding various ancillary services or marketing practices (and it could be important to expand this topic in future editions).   

Roberta and Becky also offer useful checklists and draft letters (including engagement letters); the paper-back text is accompanied by a CD-ROM.

January 7, 2014 in Crimes, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Monday, January 6, 2014

AALS Program Report: The Financial Challenges of Aging

Skating in NYC Photo (c) 2014 Katherine C. PearsonCatching up after a busy weekend at the Association of American Law Schools (AALS) Annual Meeting 2014 in New York City, I'm happy to report the presentations at the Section on Aging and the Law seemed to go smoothly and were well received, with a very engaged audience.  While the weather made travel to and from NYC a bit tricky, it also seemed to "encourage" strong attendance at sessions.  (I found myself skating even when not visiting the rink at Rockefeller Plaza!)

Section Chair Susan Cancelosi (Wayne State) was snowed out -- but I suspect Susan would be pleased by the reaction to the program she planned.  Thank you, Susan, for putting together the theme, securing speakers, making sure we were all on track, and creating a back-up weather plan.  We've decided you should be the moderator next year, if you don't mind!

Dick Kaplan (Illinois) led off the panelists, using his best "Dr. Phil" style to walk us through (both literally and metaphorically) the latest changes to Medicare triggered by the Affordable Care Act and other recent legislation.  Recognizing that many in our audience do not teach elder law or health care law, Dick offered information useful to all academics who "expect" to retire.  For example, recent information from the Employee Benefit Research Institute supported his forecast that a 65-year old person retiring in 2012 would need substantial saving just to cover out-of-pocket medical expenses, in the range of  $122,000 -$172,000 for men and between $139,000 - $195,000 for women (with projections also affected by prescription drug usage).  Dick reminded us that this figure does NOT include any costs for long-term care.  

Next on the panel was Laura Hermer (Hamline), who is new to our Section -- and a very welcome addition.  Using her health law background, Laura outlined the maze of programs, including state plan innovations and waiver programs under Medicaid, that may provide "long-term services and supports" (or LTSS -- the latest acronym that seems to be an intentional step away from a "care" model) for older persons.  Her presentation emphasized the shift to home or community based care, but Laura made clear that this shift depends heavily on unpaid care by family members. 

Incoming Section Chair Mark Bauer (Stetson) made effective use of visual images of 55+ communities in Florida to demonstrate his concern that exemptions from civil rights protections that permit age-restricted communities may not be matched by actual benefits for the older adults targeted as residents.  Mark stressed the percentage of housing that is not designed to match predictable needs for an aging population.  Examples included multi-story designs without elevators, steps into even ground-level units, and bathrooms without wheel-chair accessibility.  Mark's presentation expanded on his recent article in the University of Illinois' Elder Law Journal.

Speaking last, my topic was the latest state law developments tied to federal laws that authorize nursing homes to compel a "responsible party" to sign a prospective resident's nursing home contract.  States are creating potential personal liability for costs of care for family members, agents or guardians, or transferors or transferees of resources, if the resident is deemed ineligible for Medicaid.  Here are links to a copy of the slides I used for my  presentation on "Revisiting Nursing Home Contracts," as well as to a related short article I was invited to write for the Illinois State Bar Association's Trusts & Estates Section in December 2013.

The panel presentations were followed by great questions and observations from the audience, further highlighting the financial challenges of aging.  Plus, it was wonderful to see several new members volunteering to join the planning committee for future programs for the Aging and Law Section of AALS.  And welcome back to the board to Alison Barnes (Marquette Law).

January 6, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Retirement, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 1, 2014

Problems With Oversight -- or Eligibility -- for VA Benefit Programs: Revisiting a NYT Article

Professor Morgan blogged about this interesting NYT article earlier, but I want to highlight a portion of Jessica Silver-Greenberg's "Winning Veterans' Trust, and Profiting From It."   The article is especially critical of "actors" active in representing or promoting VA benefits for aging veterans, including "lawyers, financial advisers and insurance brokers."

"Questionable actors are capitalizing on loose oversight to unlock the V.A. money and enrich themselves, sometimes at veterans’ expense. The V.A. accreditation process is so lax that applicants provide their own background information, including any criminal records. But the V.A. has only four full-time employees evaluating the approximately 5,000 applications that it receives annually. Once people get the V.A.’s stamp of approval, they rarely lose it, even if a customer complains or regulatory actions mount. Last year, the V.A. revoked its accreditation for two of its more than 20,000 advisers."

But it is one thing to question the standards for accreditation for individuals to represent or assist applicants for VA benefits. It strikes me there is an irony to the fact that the VA requires accreditation in order to serve as a paid advisor, yet that very accreditation is, according to the article, apparently part of the problem.

It seems to me the history described in the article also suggests the very real importance of VA benefits to individuals, especially those struggling to afford long-term care, such as 86-year-old Henry Schaffer, who seems to be in that gray zone of just enough inome to be "ineligible" for VA benefits, but not enough income to afford to pay privately.  Thus, the arguable need for "planning."   The article has a mixed message, one that I tend to question, as the article seems to imply that the increased rate of usage of VA benefits is due primarily to improper benefit awards, secured by manipulative "players" rather than experienced consultants working within the rules.

I noticed that the comments to the article are as interesting as the article itself, pointing to the need for better public understanding of VA benefits (including the availability of benefits for spouses of former members of the service).  The comments highlight the consequences of close calls on ineligibility, and therefore also emphasize the need for qualified legal or other knowledgeable assistance.

January 1, 2014 in Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 31, 2013

Cash in the Hands of Aging Relatives

My colleagues at Penn State Law have often provided practical fact patterns useful for discussion in my Elder Law class. A number of years ago, one of my colleagues shared the problem of his mother believing that caregivers were stealing from her.  It was hard to know whether her worries were real or the product of diminishing capacity -- or perhaps just a variation on her documented obsession with frugality

Along that same line, a New York Times writer tracks how he and his siblings have tried to keep track of their aging father's preference for cash.  I'm sure that having cash on hand can be an important component of maintaining personal dignity, even if risky in a larger sense.  For more, read Patrick Egan's "Tracking a Thief, Once You Know There Is One," recently published by the New York Times.

Hat Tip to Professor Laurel Terry for the link to this interesting essay.

December 31, 2013 in Crimes, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Monday, December 30, 2013

Diane Rehm Interview with Author Katy Butler on "Knocking on Heaven's Door"

One of the most memorable pieces I've read was a New York Times essay written a few years ago by Katy Butler.  Butler wrote with restrained emotion and honesty about her father's struggle with deepening Alzheimer's, fueled beyond all hope of better days by his pacemaker.  She later expanded on the essay with a book published in 2013, "Knocking on Heaven's Door: The Path To a Better Way of Death," where she digs into the background of legal and medical issues about end-of-life, and details her mother's very different path. 

Diane Rehm has a fascinating interview with Katy Butler, available on podcast and being re-broadcast today on many public radio stations. Near the end of the hour-long segment, one of the callers is an Elder Law attorney (I didn't catch his location -- I was blogging as I listened!).  Here's a link to Diane Rehm's website for details on the interview. 

December 30, 2013 in Advance Directives/End-of-Life, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Misunderstanding of Palliative Care Leads to Preventable Suffering

Via the American Cancer Society:

A new review says palliative care’s association with end of life has created an “identity problem” that means the majority of patients facing a serious illness do not benefit from treatment of the physical and psychological symptoms that occur throughout their disease. The editorial is co-authored by palliative care experts at Harvard Medical School, Massachusetts General Hospital, the American Cancer Society, and Johns Hopkins University, and appears in the New England Journal of Medicine. The authors say palliative care should be initiated at the same time as standard medical care for patients with serious illnesses, and not brought up only after treatment has failed.

The authors say for palliative care to be used appropriately, clinicians, patients, and the general public must learn the fundamental differences between palliative care and hospice care, a distinction that is not well-known. Seven in ten Americans describe themselves as “not at all knowledgeable” about palliative care, and most health care professionals believe it is synonymous with end-of-life care. While both are intended to relieve suffering, hospice care provides care for people in the last phases of an incurable disease so that they may live as fully and comfortably as possible. Palliative care focuses on helping patients get relief from symptoms caused by serious illness and is appropriate at any age or stage in a serious illness. (For more information, see: "Palliative Care" on

Adding to that is the fact that debates over “death panels,” physician-assisted suicide, and other factors have made policymakers reluctant to devote resources to initiatives perceived to be associated with death and dying. The authors point to lower levels of government funding for palliative care research compared to funding for other specialties.


Read more here.


December 18, 2013 in Advance Directives/End-of-Life, Ethical Issues, Health Care/Long Term Care | Permalink | TrackBack (0)

Stanford: Getting a Better Picture of Financial Fraud

A study released in December by the  Stanford Center on Longevity addresses one of my frequent concerns.  Reports on elder abuse, particularly those on financial abuse and exploitation, routinely include a statement to the effect that "X number of financial fraud cases were examined during the year" but that that more time/money/energy should be devoted to addressing the problem "because X plus Y number of cases exist" but are unreported.  There is rarely any explanation for the prediction.  While I accept that there is likely to be underreporting, don't we need better measurement tools than intuition? 

In "The Scope of the Problem: An Overview of Fraud Prevelance Measurement," Stanford researchers address exactly this issue.  "'Without accurate and reliable estimates of fraud,' wrote Martha Deevy, director of the Financial Security Division at the Stanford Center on Longevity, 'it is difficult to understand what works or does not work to protect victims from harm.'"  The problem may be not just underreporting, but "underadmitting," especially for victims of elder abuse.

The Stanford report illustrates how analysis of recent sources and methodology can explain variations in predictions, thus also helping to design better tools for the future, including better surveys.  For example, they point to the 2011 study of elder abuse in New York State by Lachs & Berman, "notable as a comprehensive endeavor that used multiple sources of data and collaboration among community, governmental, and academic partners to get a sense of the 'big picture' problem." 

Thanks to my colleague, Laurel Terry, for sharing this report.  Laurel and Howard are the justifiably proud parents of a Stanford sophomore. 

December 18, 2013 in Crimes, Ethical Issues, Property Management, Statistics | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 17, 2013

WSJ: Talking About Things Other Than Money With Your Heirs

While I'm not sure I buy all of the suggestions in the article by Wall Street Journal article writer Andrea Coombes on "How to Avoid Estate Fights Among Your Heirs," she certainly raises topics worthy of discussion.  The final point is particularly interesting, encouraging us to consider writing an "ethical will," as a way to share our values.  This is explained as a a non-legally binding way to pass on a life story or a family legacy of values to the next generations.

Hat tip to Dave Pearson in Albuquerque, New Mexico for this link.

December 17, 2013 in Consumer Information, Estates and Trusts, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Monday, December 16, 2013

New Research Shows Wide Support for Patients' End-of-Life Rights

Following up on yesterday's post about the aid-in-dying trial recently concluded in New Mexico:

Recent headlines and stories about a poll from The Pew Research Center's Religion & Public Life project missed the real news.  The poll showed that a majority or "two-thirds of Americans (66 percent) say there are at least some situations in which a patient should be allowed to die" and concluded "the share [of people] saying they would stop their treatments so they could die has remained about the same over the past 23 years."

Yet, many subsequent headlines and stories about the poll focused on a slight increase in the percentage of Americans who say that doctors should do everything possible to keep patients alive.This latter finding is not surprising given the growing chasm of access to health care between the wealthiest and poorest Americans over the last few decades. It is only natural that many Americans who are medically underserved or marginalized would want more medical care at the end of life when asked that question. In addition, health care has seemed like a luxury to millions of Americans who cannot afford it. But thanks to implementation of the Affordable Care Act starting next month, many will have access to more and better-quality health care.

Equally important is that everyone feels differently about how much medical treatment they want at the end of life based on the specific circumstances they are facing. These critical end-of-life decisions are complex and tightly connected to a variety of factors in a person's life or situation. For example, 57 percent of those polled say they would tell their doctors to stop treatment if they had a disease with no hope of improvement and were suffering. That figure is 52 percent when the same people were asked if they would want to stop receiving treatment if they had an incurable disease and were totally dependent on someone else for their care.

Read more in the Huffington Post.

December 16, 2013 in Advance Directives/End-of-Life, Ethical Issues, Health Care/Long Term Care | Permalink | TrackBack (0)