Thursday, July 31, 2014
At the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago on July 10 and 11, many weeks of hard work culminated in adoption of a "Chicago Declaration on the Rights of Older Person." The 11th draft -- of what is to be a working document for the future -- will be presented at the Fifth Working Session of the United Nations Open-Ended Working Group on Ageing to be held in New York City this week.
In addition, the Chicago Declaration was submitted by United States Representative Janice Schakowsky (Illinois) to the Congressional Record on July 25.
Congratulations to all who worked on this, with the leadership of many, including Associate Dean Ralph Rubner and Amy Taylor, Head Research Coordinator at John Marshall Law School. More work for everyone is ahead on this exciting task of seeking wider recognition of the human rights of older persons.
Speakers at the "Side Event" for the Chicago Declaration, to be held on August 1 at the U.N., include William Pope, Commissioner of the American Bar Association Commission on Law and Aging, and Ebbe Johansen, Vice President, AGE Platform Europe from Brussels.
Wednesday, July 30, 2014
From the Department of Justice, news of the False Claims Act settlement reached with Omnicare Inc., "the nation's largest provider of pharmaceuticals and pharmacy services to nursing homes." The company has agreed to pay $124.24 million "in return for their continued selection" as the supplier of drugs to elderly Medicare and Medicaid beneficiaries. The claims related to improper discounts allegedly given by Omnicare as incentives for doing business with the company.
According to the DOJ press release, the settlement resolves two lawsuits filed by whistleblowers under the qui tam provisions of the False Claims Act. "The first whistleblower, Donald Gale, a former Omnicare employee, will receive $ 17.24 million."
DOJ states that since January 2009, it has "recovered a total of more than $19.5 billion through False Claims Act cases," including more than $13.9 billion in cases alleging fraud associated with health care programs.
What do you think about promotion of filial support laws -- laws potentially obligating adult children to care for and maintain or financially assist an indigent parent -- as grounds to encourage states to promote the purchase of "long-term care" insurance? In essence, that is what three authors associated with the "American College of Financial Services" advocate in a recent article for volume 20 of Widener Law Review. Here's the SSRN abstract from "Leveraging Filial Support Laws Under State Partnership Programs for Long-Term Care Insurance."
"As thousands of the United States’ baby-boomers retire each day, people live longer, families disperse, and the population ages. Financing long-term care needs has become an increasingly important focal point in both civilian and government budget discussions. In order to reduce reliance on government provided long-term care funding programs such as Medicaid, states can leverage the often unenforced filial responsibility laws and State Long-Term Care Partnership Programs. Through the enforcement of existing filial responsibility laws, states can provide the proverbial “stick” to incentivize people to purchase long-term care insurance by increasing their personal liability for their family members’ long-term care expenditures. Furthermore, by offering liability protections from filial responsibility laws under the state’s long-term care insurance partnership program, states will be able to offer a “carrot” to encourage participation in the long-term care insurance market. Ultimately, by leveraging these two existing legal structures, states can incentivize the purchase of long-term care insurance and reduce reliance on government provided long-term care financing programs."
Tuesday, July 29, 2014
From Senior Housing News, comes the word of River Terrace Estates, a nonprofit Continuing Care Retirement Community (CCRC) in Bluffton, Indiana, that filed for protection in bankruptcy court on July 22. Unlike some Chapter 11 reorganizations for CCRCs, River Terrace is not a "new" construction, having opened in 2004. However, as with newer operations that came on line just as the 2008 financial crisis hit, River Terrace reports being impacted by the recession, reportedly a hard hit for housing in Northern Indiana. As described in Senior Housing News, one potentially unique aspect of the River Terrace financing issues is the source of the loans it carried:
"Contrary to some CCRCs that rely heavily on institutional investments, River Terrace Estates’ financing encompasses roughly 1,400 individuals who own RTE bonds. As a result, the CCRC determined that Ch. 11 was the only feasible method to restructure the bonds. In connection with the filing, the CCRC has already filed a plan of reorganization in order to expedite the process, River Terrace Estates stated in a news release.
'Because we have some 1,400 bondholders, we decided the best way to give them a voice in this process is to ask them to vote on a two-part plan so we know their intentions,' Stewart said. RTE bondholders will be asked to vote on whether they want to keep their bonds for the long-term based on the community’s recent progress, or market the CCRC to validate its value."
According to news reports, either way, "bondholders will take a serious haircut, perhaps recovering only 53% in a bond exchange or $0.46 on the dollar in the sale of the facility, a hard hit on predominantly non-institutional investors," according to George Mesires, a lawyer with the finance and restructuring team for a Chicago law firm, quoted in Senior Housing News and on the firm's website.
Another potentially unique feature will be River Terrace Estate's plan for going forward with a different payment model for new residents. Rather than paying an entry fee described as $55k to $100k, new residents can pay a "nonrefundable communtiy fee of about $30,000, accordiong to figures provided" by a spokesperson quoted in Senior Housing News.
This summer has brought news of other financial struggles for CCRCs, including the June Chapter 11 filing by Texas-based senior living company Sears Methodist Retirement Systems, and the Chapter 11 filing by a New York life care community, The Amsterdam on July 23. The ability of CCRCs to emerge successfully from similar reorganizations in the past has often depended on new operating partners and restructuring of loans, but also on the ability of the companies to reassure future residents of appropriate protection and use of "large" upfront fees.
Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, July 27, 2014
The Amsterdam, also known as Amsterdam House at Harborside, has been marketed as the "first and only" life care community in Nassau County. It now also appears to be the first CCRC in that county -- and perhaps in the state of New York -- to seek the protection of the bankruptcy court. The company filed under Chapter 11 for "Reorganization" on July 23, 2014.
As reported in Newsday on July 23:
"An upscale retirement community in Port Washington has filed for bankruptcy protection after failing to get all of its bondholders to support a debt restructuring. The Amsterdam at Harborside sought protection in federal court from its creditors under Chapter 11 of the U.S. Bankruptcy Code. Executives at the not-for-profit said Wednesday that it would not close and there are no plans to fire any of the 173 employees. In a court filing in Central Islip on Tuesday, the continuing-care complex said its liabilities and assets were both in the range of more than $100 million to $500 million."
According to news reports, The Amsterdam was opened in 2010, near the peak of the recession, a tough time for many CCRCs. It is a "refundable entrance" fee model, with entrance fees ranging from $500,000 to $1.6 million, with a reported 85% occupancy status. Newsday also reports that "under the proposed restructuring plan, [company spokespersons said] the retirement community would honor the contracts of existing residents, continue to refund residents' money when they no longer live there, and maintain the current fee structure."
Update: Senior Housing News describes the filing as a "pre-negotiated chapter 11 bankruptcy petition to restructure an estimated $220 million in debt."
Thursday, July 24, 2014
The CarTalk Guys on National Public Radio have a crazy tradition of breaking their one hour radio program into "three halves" (okay, they have a lot of crazy traditions -- I'm focusing on just one). In that tradition, I'd been thinking about how the practice of "elder law" might also have three halves, but then I realized that perhaps it really has five halves. See what you think.
- In the United States, private practitioners who call themselves "Elder Law Attorneys" usually focus on helping individuals or families plan for legal issues that tend to occur between retirement and death. Many of the longer-serving attorneys with expertise in this area started to specialize after confronting the needs of their own parents or aging family members. They learned -- sometimes the hard way -- about the need for special knowledge of Medicare, Medicaid, health insurance and the significance of frailty or incapacity for aging adults. They trained the next generations of Elder Law Attorneys, thereby reducing the need to learn exclusively from mistakes.
- Closely aligned with the private bar are Elder Law Attorneys who work for legal service organizations or other nonprofit law firms. They have critical skills and knowledge of health-related benefits under federal and state programs. They also have sophisticaed information about the availability of income-related benefits under Social Security. They often serve the most needy of elders. Their commitment to obtain solutions not just for one client, but often for a whole class of older clients, gives them a vital role to play.
- At the state and federal levels, core decisions are made about how to interpret laws affecting older adults. Key decisions are made by attorneys who are hired by a government agency. Their decisions impact real people -- and they keep a close eye on the financial consequences of permitting access to benefits, even if is often elected officials making the decisions about funding priorities. I would also put prosecutors in this same public servant "Elder Law" category, especially prosecutors who have taken on the challenge of responding to elder abuse.
- A whole host of companies, both for-profit and nonprofit, are in the business of providing care to older adults, including hospitals, rehabilitation centers, nursing homes, assisted living facilities, group homes, home-care agencies and so on -- and they too have attorneys with deep expertise in the provider-side of "Elder Law," including knowledge of contracts, insurance and public benefit programs that pay for such services.
- Last, but definitely not least, attorneys are involved at policy levels, looking not only to the present statutes and regulations affecting older adults, but to the future of what should be the legal framework for protection of rights, or imposition of obligations, on older adults and their families. My understanding and appreciation of this sector has increased greatly over the last few years, particularly as I have come to know human rights experts who specialize in the rights of older persons.
Of course, lawyers are not the only persons who work in "Elder Law" fields and it truly takes a village -- including paralegals, social workers, case workers, health care professionals, and law clerks -- to find ways to use the law effectively and wisely. Ironically, at times it can seem as if the different halves of "elder law" specialists are working in opposition to each other, rather than together.
My reason for trying to identify these "Five Halves" of Elder Law is that, as with most of us who teach courses on elder law or aging, I have come to realize I have former students working in all of these divisions, who began their appreciation for the legal needs of older adults while still in law school. Organizing these "halves" may also help in organizing course materials.
I strongly suspect I'm could be missing one or more sectors of those with special expertise in Elder Law. What am I forgetting?
Tuesday, July 22, 2014
Mexico and countries in the Caribbean, Central and South America have been working very hard on the question of whether laws are needed to recognize and promote the human rights of older persons. This commitment was demonstrated during the 2014 International Elder Law and Policy Conference in Chicago, by Rosa Bella Caceres Mongelos from Paraguay, as one of the speakers on the panel focused on "Dignity, Equality and Anti-Ageism Rights of Older Persons."
Professor Caceres Mongelos is the current president of the Central Association of Retired Public Servants and Teachers in Paraguay, and has experience as a master teacher, educational administrator, and vocational counselor. She has also taught classes at the university level on leadership. When I asked whether her organization is comparable to AARP in the U.S., which was started by a retired teacher, she laughed and said "maybe some day." I think she would not mind me saying that she's tiny but powerful -- and certainly she is an articulate spokesperson for the issues her country, with a total popularion of 6.8 million, is facing.
Professor Caceras Mongelos has served as a spokesperson for her civil society organization during regional meetings for Latin America and the Caribbean in 2012 and 2013 that led to endorsment of a formal international convention on the rights of older persons.
The participation of Paraguay in international discussions of aging is forward-thinking, as it is actually a comparatively young country in terms of its overall population. Persons aged 60 and over comprise approximately 8% of the population. Recent news reports indicate that more than 66% of its population is less than 30 years old. At the same time, with their citizens already experiencing relatively long-life spans, especially on a comparative basis (average life span is now 75 according to some reports), the country will begin to see the impact of aging as a nation starting in 2038.
The organization headed by Caceres Mongelos has adopted advocacy goals for its members, including health related goals, such as securing free health care (including mobile clinics) for retirees for critical matters such as vision and dental care, and for treatment of cancer and chronic diabetes, all issues recognized as important for the self-esteem of older persons. Her Central Association has a project called "Hogares de Jubliados" or "Homes for the Elderly," with a goal of providing space for as many as 200 persons deemed vulnerable and unprotected. Her organization seeks to "monitor and insure safekeeping of social security funds under control of the treasury" during the current fiscal crisis. A better system of public transportation is another key goal.
She described her Central Association's recent Yellow Ribbon Campaign to re-enforce recognition of the rights of civil services and retirees to be free from pay discrimination under the Constitution of Paraguay. She described the yellow ribbons as symbols for the "struggle to claim solidarity, love, better living and the light of hope for a bearable and dignified old age." Despite the small proportion of Paraguayans currently deemed older -- in their "third age" -- she said "fragility" often characterizes their life conditions, with more than a quarter of the population of older adults illiterate and with only 19% currently receiving any form of income from pension or retirement benefits. In addition, her association stresses that real attention must be paid to the needs of older persons in indigenous communities and Afro-descendants.
In closing, Professor Caceres Mongelos called for an end to procrastination on international recognition of the rights of older persons. She said, "Declaring and implementing the regulations calling for dignity, equality and non-discrimination ... for older persons needs to be achieved as quickly as possible [toward] the goal of improving quality of life and respecting the human rights of older persons."
Monday, July 21, 2014
Leslie Frances, Associate Dean for Faculty Research Development at University of Utah Law, has an interesting post on the Health Law Prof Blog about challenges to states that have failed to provided Medicaid coverage for needs of residents in "assisted living," as opposed to "skilled nursing" care settings. Here are two such cases she describes:
First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds. The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase. The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014. The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).” Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished). Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard. Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.
Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs. Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services. The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it. Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014).
My own state of Pennsylvania is one of the states that has, in theory, obtained approval from HHS to use Medicaid in assisted living facilities, but even after several years, funding has not been implemented. Across the state line in New Jersey, low income/asset residents in assisted living are eligible to apply for Medicaid.
Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 16, 2014
From the New York Times on July 16, 2014, this news of a class action lawsuit challenging dramatic cuts in Medicaid funding for home care:
"A federal class action lawsuit filed late Tuesday accuses New York State health officials of denying or slashing Medicaid home care services to chronically ill and disabled people without proper notice, the chance to appeal or even an explanation, protections required by law.
The lawsuit, filed in United States District Court for the Southern District of New York, names three plaintiffs: an impaired 84-year-old woman living alone in Manhattan, a frail 18-year-old Brooklyn man with severe congenital disabilities, and a 65-year-old Manhattan man with diabetes and a schizoaffective disorder. But it was brought by the New York Legal Assistance Group on behalf of tens of thousands of disabled Medicaid beneficiaries who need home health care or help with daily tasks like bathing and eating."
For the full New York Times article, see Nina Bernstein on "Medicaid Home Care Cuts are Unjust, Lawsuit Says."
From McKnight's comes this interesting report on new statistical information on Alzheimer's:
"The odds of developing Alzheimer's disease fell sharply among seniors in the United States over the last 30 years, according to research presented Tuesday at the Alzheimer's Association International Conference in Copenhagen. The finding casts a new light on prior estimates that the number of people needing long-term care will triple by 2050, largely due to Alzheimer's."
For a more complete report on the Conference, see McKnight's piece "Chance of a senior developing Alzheimer's has dropped 44% over the last three decades, large U.S. study shows."
Monday, July 14, 2014
It's been nearly 3 1/2 decades since China's government started limiting most urban families to one child. The family planning policy successfully slowed the nation's population growth, but it has had some unintended consequences. One is that some parents lose their only children to illness or accidents and end up with no one to care for them in their old age. Now, these parents have gotten together to demand their rights. A group of parents meets at a Beijing restaurant to talk and console each other. Many of them say they have a hard time relating to people who haven't experienced the heartbreak they have. They ask to be identified by their online names, because they don't want to get in trouble for criticizing government policy. One of the diners identifies herself as Xiaonan's mom. Xiaonan died of illness eight years ago, when he was 25 years old. She says his death made her feel like a failure and her life lost its meaning. More On China's One-Child Policy A man and child walk in Beijing's Tiananmen Square. China's government recently announced an easing of the country's one-child policy. While the move appears to be broadly supported, many urban Chinese parents say it would be hard to afford a second child. Feng Jianmei and her husband could not pay $6,000 in fines for violating China's one-child policy. In June, when she was seven months pregnant, local officials abducted her and forced her to have an abortion, her family says. The case has provoked widespread outrage. "I gave everything to him, so when he left, he took everything I had," she says. "Now I'm just surviving. After he left, I started drinking. If I didn't, I wouldn't be able to sleep at all." Population experts estimate that over 1 million Chinese families have lost their only children. They say that number could exceed 10 million by midcentury.
Read more at NPR News.
Wednesday, July 9, 2014
One of the great components of the network of "Law Prof Blogs" is Chinese Law Prof Blog, edited by Professor Donald Clarke at George Washington Law. Professor Clarke posted a recent entry entitled "Controversy Over Elder Law in China," pointing to draft legislation related to "support" for the aged. While the links in this particular posting are -- of course -- to Chinese language sources, I suspect this might be another aspect of the debate about filial support laws that I've been following through Australian media sources. Here is an English language report on a dramatic Chinese case involving what I would describe as a filial support law matter. Hat tip to my Penn State colleague Professor Beth Farmer for bringing the interesting and wide-ranging Chinese Law Prof Blog to my attention.
Perhaps we'll hear more about this at the 2014 International Elder Law and Policy Conference in Chicago at John Marshall Law this week. Stay tuned.
We've previously posted advance information about the International Elder Law and Policy Conference that will be hosted this week -- July 10-11 -- in Chicago. The organizers are John Marshall Law School; Roosevelt University, College of of Arts and Sciences; and East China University of Political Science and Law.
The conference will have an interesting format, combining presentations from a range of professionals with experience working with or for older persons, and working sessions to draft a model "International Bill of Rights for Elderly Persons, in parallel with U.N. sessions on ageing.
As an example of the breadth of participation and coverage at this conference, my session on Thursday focuses on "Health Care, Caregving for Older Persons and Legal Decision Making," and will be co-moderated with Professor Walter Kendall at John Marshall. The panel includes the following topics and speakers:
- "Dementia and Planning Death: The Challenge for Advance Directives," by Meredith Blake at University of Western Austalia Law School
- "Social Change and Its Apparent Effect on Senior Care Services: A Comparative Study of Post-Soviet Union Russia and the U.S.," by Amy Delaney, partner at Delaney, Delany & Voorn in Illinois, and Alina Risser, a lawyer from Russia, currently studying law at John Marshall;
- "Rights are Not Good for Older Persons in Long-Term Care Settings? Experience from the European Union," by Nena Georgantzi, Legal Officer for AGE Platform Europe;
- "Bridging the Caregiver Gap: Does Technology Provde an Ethically and Legally Viable Answer?," by Donna Harkness, University of Memphis School of Law;
- "The Insufficiency of Spiritual Support of Urban Elders in China and Suggestions on Legislation," by Jun Li, East China University of Political Science and Law.
We'll report more after the events on Thursday and Friday!
July 9, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Sunday, July 6, 2014
I'm back from a fun and productive time in Northern Ireland, and feeling invigorated. In addition to enjoying beautiful weather, great craic, and time spent with friends exploring the north Antrim coast via foot, boat and a friend's snazzy red convertible, I participated in working meetings in Belfast conducted by Claire Keatinge, the Commissioner of Older People for Northern Ireland (COPNI). The topics were prospective laws and guidance regarding safeguarding and social care policies for older adults, connected to commissioned research by two academic teams headed by members of Queens University Belfast.
I've been thinking about one particular theme that emerged for me from the working sessions: does a government's commitment to assess need for services obligate the government to meet those needs? In a perfect world, of course that would be the goal, but this is hardly a perfect world. Claire Keatinge (pictured in the center, with members of the social care research and advisory teams) raised the point that too often governments may be driven by "what services are available" as the definition of need. In other words, there is a tendency to recognize an individual's need only if the government actually has a program or package of services available. Thus, for example, even if the individual needs one-on-one monitoring and assistance to avoid serious risk of injury from falling, the tendency of social care programs would be to indicate 4 hours per day of "need" if that was the limit of government funding. Such "backwards" assessment leaves the person vulnerable, not just from the limitations on public funding, but from the inaccurate record of need.
We spent time talking about whether legislation or policy guidance should address both assessment of need and programs of service. The COPNI discussion helped me to realize that accurate assessment and recording of all need is critical to coordination of family, volunteers, nonprofit or church-based assistance, and government funding to meet the true needs of disabled or frail individuals. However, assessment of need still carries implications for government funding.
The implications of assessment are addressed in an important recent decision of the European Court of Human Rights in McDonald v. United Kingdom (Application No. 4241/12). In the case, a British woman born in 1943 sustained a disabling stroke in 1999, followed by a badly broken hip from a later fall. Ms. McDonald, who was not incontinent, applied for assistance at night with toileting; eventually she was assessed as being in "substantial need" of nighttime personal assistance and provided a funding package that permitted her to have nighttime assistance. However, later the government office reduced the funding, appearing to conclude the cost was excessive and "incontinence pads" for nighttime use was sufficient, reducing the number of hours of service.
Ms. McDonald challenged the reduction of services under Article 8 of the European Convention on Human Rights, arguing the decision violated her right to respect for her private life, and that the local authority was "unreasonably and unlawfully failing to meet her assessed and eligible needs." Several months later she was reassessed by the local authority, which then determined that Ms. McDonald's needs for "safety" at night could be adequately met by the use of incontinence pads and sheets. Ms. McDonald framed an emotionally persuasive case that the ability to toilet in a dignified manner was a core human right.
Ms. McDonald's appeal was addressed by high courts in England, before reaching the European Court of Human Rights, which issued a decision in May 2014. Ultimately the court concluded that during the period of time between the initial assessment of "substantial" need and the later reassessment, a period of about a year during which Ms. McDonald was provided with limited nighttime assistance, was a violation of Article 8. She was therefore deemed entitled to a relatively nominal sum of damages (explained in a detailed portion of the opinion). However, once the local authority's "reassessment of need" occurred, the Court determined it was without the power to find a human rights violation under Article 8. This outcome strikes me as demonstrating the potential for governments to be driven by finances to avoid making independent, candid assessments of need. Ms. McDonald's physical conditions and nighttime needs had not changed; only the "assessed needs" had changed.
For more on the implications of the McDonald ruling, viewed by many as a "win" because it recognized a personal right protected under Article 8, see English Barrister Steve Broach's thoughtful commentary, "Context is Everything: Why McDonald v. UK is a Stepping Stone on the Road to a Dignified Future for Disabled People."
Tuesday, June 24, 2014
The U.S. Department of Health and Human Services’ Administration for Community Living (ACL) is proud to announce the release of a new online learning tool: Building Respect for LGBT Older Adults. The tool is designed to increase awareness of the issues faced by lesbian, gay, bisexual, and transgender (LGBT) individuals living in long term care (LTC) facilities.
After completion of the online training, program participants will be prepared to:
- Increase visibility of the issues facing LGBT individuals in LTC facilities.
- Provide easy access to information on serving LGBT individuals in LTC facilities.
- Encourage LTC facilities to provide opportunities for staff to take the online training.
- Change the way individuals and facilities approach older LGBT adults.
The Building Respect for LGBT Older Adults tool was developed in collaboration with the HHS Office of Public Affairs, the Centers for Medicare & Medicaid Services, and the ACL-funded National LGBT Resource Center, with input from aging and LGBT advocates.Read more.
Additional LGBT Resources for the Aging Services Network
Since 2010, the ACL Administration on Aging has funded Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE) to develop and operate the National Resource Center on LGBT Aging (NRC), the country's first and only technical assistance resource center aimed at improving the quality of services and supports offered to LGBT older adults. This resources clearinghouse website was recently revamped and includes great local and national resources, as well as a new database of all the organizations that have received one of NRC’s trainings. Also, the NRC’s most popular guide, A Practical Guide to Creating Welcome Agencies is now available in Spanish titled Servicios Inclusivos Para Personas Mayores LGBT. Request a copy today!
Also, read the Presidential Proclamation -- Lesbian, Gay, Bisexual, and Transgender Pride Month, 2014.
Friday, June 20, 2014
I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues.
Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss practical concerns about elder abuse at the local level. Bob and I conducted two sessions on Powers of Attorney.
This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force. Judge Murphy, right, is also a part of this effort. A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse. Guided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.
Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI). Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast. The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors. Last winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals. These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals. I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year.
Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks. I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me.
June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 18, 2014
Last week's news of a Chapter 11 Bankruptcy proceeding in the Texas-based senior living company Sears Methodist Retirement Systems, Inc. (SMRS) has once again generated questions about "entrance fees" paid by residents at the outset of their move to a Continuing Care Retirement Community (CCRC). CCRCs typically involve a tiered system of payments, often including a substantial (very substantial) upfront fee, plus monthly "service" fees. The upfront fee will carry a label, such as "admission fee" or "entrance fee" or even entrance "deposit," depending on whether and how state regulations require or permit certain labels to be used.
As a suggestion of the significance of the dollars, a resident's key upfront fee at a CCRC operated by SMRS reportedly ranged from $115,000 to $208,000. And it can be much higher with other companies. So, let's move away from the SMRS case for this "blog" outline of potential issues with upfront resident fees.
Even without talking about bankruptcy court, for residents of CCRCs there can be a basic level of confusion about upfront fees. In some instances, the CCRC marketing materials will indicate the upfront fee is "refundable," in whole or in part, in the event the resident moves out of the community or passes away. Thus, residents may assume the fees are somehow placed in a protected account or escrow account. In fact, even if the upfront fee is not "refundable," when there is a promise of "life time care," residents may assume upfront fees are somehow set aside to pay for such care. How the facility is marketed may increase the opportunity for resident confusion. Residents are looking for reassurances about the costs of future care and how upfront fees could impact their bottom line. That is often why they are looking at CCRCs to begin with. "Refundable fees" or "life care plans" can be important marketing tools for CCRCs. But discussions in the sales office of a CCRC may not mirror the "contract" terms.
One of the most important aspects of CCRCs is the "contract" between the CCRC and the resident. First, smaller "pre move-in" deposits may be paid to "hold" a unit, and this deposit may be expressly subject to an "escrow" obligation. But, larger upfront fees -- paid as part of the residency right -- are typically not escrowed. It is important not to confuse the "escrow" treatment of these fees. Of course, the "hold" fee is not usually the problem. It is the larger upfront fees --such as the $100k+ fees at SMRS -- that can become the focus of questions, especially if a bankruptcy proceeding is initiated.
The resident's contract requires very careful reading, and it will usually explain whether and how a CCRC company will make any refund of large upfront admission fees. In my experience of reading CCRC contracts, CCRCs rarely "guarantee" or "secure" (as opposed to promise) a refund, nor do they promise to escrow such upfront fees for the entire time the payer resides at the CCRC. In some states there is a "reserve" requirement (by contract or state law) for large upfront fees whereby the CCRC has a phased right to release or use the fees for its operation costs. Thus, the contract terms are the starting place for what will happen with upfront fees.
Why doesn't state regulation mandate escrow of large upfront fees? States have been reluctant to give-in to pressure from some resident groups seeking greater mandatory "protection" of their upfront fees. There's often a "free enterprise, let the market control" element to one side of regulatory debates. On the other side, there is the question of whether life savings of the older adult are proper targets for free enterprise theories. Professor Michael Floyd, for example, has asked, "Should Government Regulate the Financial Management of Continuing Care Retirement Communities?"
My research has helped me realize how upfront fees are a key financial "pool" for the CCRC, especially in the early years of operation where the developer is looking to pay off construction costs and loans. CCRCs want -- and often need -- to use those funds for current operations. and debt service. Thus, they don't want to have those fees encumbered by guarantees to residents. They take the position they cannot "afford" to have that pool of money sitting idle in a bank account, earning minimal interest. This is not to say the large entrance fees will be "misspent," but rather, the CCRC owners may wish to preserve flexibility about how and when to spend the upfront fees.
The treatment of "upfront fees" paid by residents of CCRCs also implicates questions about application of accounting and actuarial rules and principles. That important topic is worthy of a whole "law review article" -- and frankly it is a topic I've been working on for months.
In additional to looking for actuarial soundness, analysts who examine CCRCs as a matter of academic interest or practical concern have looked at whether CCRC companies and lenders may have a "fiduciary duty" to older adults/residents, a duty that is independent of any contract law obligations. Analysts further question whether a particular CCRC's marketing or financial practices violate consumer protection or elder protection laws.
There can also be confusion about what happens during a Chapter 11 process. First, during the Chapter 11 Bankruptcy process, a facility may be able to honor pre-bankruptcy petition "refund" requests or requests for refund of fees for a resident who does not move into the facility. Second, to permit continued operation as part of the reorganization plan, a facility will typically be permitted by the Court to accept new residents during the Chapter 11 proceeding and those specific new residents will have their upfront fees placed into a special escrow account, an account that cannot be used to pay the pre-petition debts of the company.
But what about the upfront fees already paid pre-petition by residents who also moved in before the bankruptcy petition? Usually those upfront fees are not escrowed during the bankruptcy process. Indeed, other "secured" creditors could object to refunds of "unsecured" fees. The Bankruptcy Court will usually issue an order -- as it did in SRMS's bankruptcy court case in Texas last week -- specifying how current residents' upfront fees will be treated now and in the future. A bit complicated, right? (And if I'm missing something please feel free to comment. I'm always interested in additional viewpoints on CCRCs. Again, the specific contract and any state laws or regulations governing for handling of fees will be important.)
Of course, this history is one reason some of us have been suggesting for years that prospective residents should have an experienced lawyer or financial consultant help them understand their contracts and evaluate risks before signing and again in the event of any bankruptcy court proceeding. "Get thee to a competent advisor." See also University of New Mexico Law Professor Nathalie Martin's articles on life-care planning risks and bankruptcy law.
As I mentioned briefly in writing last week about the SMRS Chapter 11 proceeding, CCRC operators have learned -- especially after the post-2008 financial crisis -- that the ability of a CCRC to have a viable "second chance" at success in attracting future residents will often depend on the treatment of existing residents. Thus, one key question in any insolvency will be whether the company either (a) finds a new "owner" during the Chapter 11 process or (2) is able to reorganize the other debts, thereby making it possible for the CCRC company to "honor" the resident refund obligations after emerging from the Chapter 11 process.
During the last five years we have seen one "big" default on residents' upfront. refundable entrance fees during the bankruptcy of Covenant at South Hills, a CCRC near Pittsburgh. A new, strong operator eventually did take over the CCRC, and operations continued. However, the new operator did not "assume" an obligation to refund approximately $26 million in upfront fees paid pre-petition by residents to the old owner. In contrast, Chapter 11 proceedings for some other CCRCs have had "gentler" results for residents, with new partners or new financial terms emerging from the proceedings, thereby making refunds possible as new residents take over the departed residents' units.
For more on how CCRC companies view "use" of upfront fees, here's a link to a short and clear discussion prepared by DLA Piper law firm, which, by the way, is the law firm representing the Debtor SMRS in the Texas Chapter 11 proceeding.
June 18, 2014 in Consumer Information, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Monday, June 16, 2014
Recently Artis Senior Living CEO Don Feltman joined CEOs from 10 other high profile corporate employers, such as Coca-Cola, Tyson Foods, and Loews Hotels & Resorts, to urge Congress to fix the "broken" immigration system, to permit expanded lawful avenues for foreign-born workers in the U.S. In their June 10 letter, they write in part:
All our companies rely on legal immigrants working alongside Americans to keep our businesses growing and contributing to the economy. This is a reality driven by demographics. In 1950, more than half of America’s workers were high school dropouts willing to do physically demanding, low-skilled work. Today, the figure is less than 5 percent. But our businesses still need less-skilled workers – and the need will only grow in years ahead. Baby boomers are retiring: 10,000 older workers are leaving the workforce every day. And after a long downturn, most of our operations are expanding and looking to hire workers.
The problem: there is virtually no legal way for less-skilled foreigners without family in the U.S. to enter the country and work in year-round jobs – effectively no temporary or permanent visas available for non-seasonal workers. Congress has an obligation to fill this gap – we need a visa program for less-skilled foreign workers seeking year-round jobs. Employers should have to try to hire Americans first. But if they can’t find enough U.S. workers, they should be able to hire foreign workers quickly, easily and legally.