Wednesday, June 15, 2016
We've blogged on a number of occasions about the "elder tech revolution" and the technology competency of elders. We're not the only ones watching this issue. In fact, the President's Council of Advisors on Science and Technology issued a report to the President in March of this year. Report to the President Independence, Technology and Connection in Older Age is a detailed look at various issues and technologies. The executive summary sets the stage
The U.S. population is getting older, and Americans are living longer, on average, than they ever have before. As they age, people are healthier and more active than the generations before them and have fewer functional limitations such as difficulty walking or blindness. Studies show that people are happier on average as they advance into their later decades and enjoy high levels of accumulated knowledge and experience.
Getting older is a time of social, emotional, mental, and physical change. Retirement might change how a person interacts socially every day, affecting a person’s mood and well-being. Cognitive aging—the normal process of cognitive change as a person gets older—can begin, or a permanent change in physical function may arise. Technology offers a path for people who are navigating these changes potentially to prevent or minimize the risks associated with them and to enhance people’s ability to live their lives fully. We, the President’s Council of Advisors on Science and Technology (PCAST), sought to identify technologies and policies that will maximize the independence, productivity, and engagement of Americans in their later years.
The Committee focused on 4 areas of aging: physical and cognitive changes, hearing loss and lack of social interaction. The report contains "cross-cutting recommendations" as well as area-specific recommendations. The cross-cutting recommendations include federal support and coordination, widespread internet access, adoption of monitoring technology, and encouraging research to develop more innovation. There are 12 area-specific recommendations.
The blog post about the report is available here.
In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower." Her experiences with retaliation -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.
In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:
An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services]. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.
Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."
Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring. She cautions:
I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.
It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....
When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.
Thursday, June 9, 2016
Sometimes we run into stories that really really are sad. This story in the New York Times is sad. Imagine being old and homeless, whether recently homeless or homeless for a long time. Think about the struggles one has in being homeless. Compound those struggles with the challenges faced by someone who has mobility issues or physical problems identified with being older. Old and on the Street: The Graying of America’s Homeless is an in-depth story that ran on May 31, 2016 and notes [t]he emergence of an older homeless population is creating daunting challenges for social service agencies and governments already struggling to fight poverty.
They lean unsteadily on canes and walkers, or roll along the sidewalks of Skid Row here in beat-up wheelchairs, past soiled sleeping bags, swaying tents and piles of garbage. They wander the streets in tattered winter coats, even in the warmth of spring. They worry about the illnesses of age and how they will approach death without the help of children who long ago drifted from their lives.
Homelessness is not just an issue for elders, but it is an issue that is growing since all of us age. "The homeless in America are getting old... There were 306,000 people over 50 living on the streets in 2014, the most recent data available, a 20 percent jump since 2007, according to the Department of Housing and Urban Development. They now make up 31 percent of the nation’s homeless population."
There are the "recently" homeless some of whom lost jobs and others who can't afford a home on fixed-income, and then there are the long-term homeless.
Many older homeless people have been on the streets for almost a generation, analysts say, a legacy of the recessions of the late 1970s and early 1980s, federal housing cutbacks and an epidemic of crack cocaine. They bring with them a complicated history that may include a journey from prison to mental health clinic to rehabilitation center and back to the sidewalks.
The article notes the incidences of homelessness is somewhat geographic and is rising in the larger metropolitan areas. The article features interviews with several elders in California who are homeless.
How do cities respond to the challenges of individuals who are homeless, and especially those elders who are homeless? "The challenges faced ... have forced advocates for the homeless and government agencies to reconsider what kinds of services they need: It is not just a meal, a roof and rehabilitation anymore."
Assign this article to your students and ask them to create a plan for their city to provide services. It should be an interesting class discussion.
Wednesday, June 8, 2016
A recent New York Times article sheds light on a frequent topic I've encountered in my own research on the convergence of elder law, contract law, and nonprofit organizations law: when will a nonprofit nursing home or similar senior living operation be "allowed" to convert or sell-off to a for-profit operation? And what if the "real" plan is to convert to an entirely new type of for-profit operation?
The potential for conversion appears to be the heart of a dispute over two nonprofit nursing homes in Manhattan, where State and City authorities are seeking to prevent their purchase by a for-profit company known as Allure Group. From the New York Times:
Citing misrepresentations and broken promises, the New York State attorney general’s office is seeking to prevent the purchase of two nursing centers by a company that was involved in transactions that put a Manhattan nursing home in the hands of luxury condominium developers....
“Allure made clear and repeated promises to continue the operation of two nursing homes for the benefit of a vulnerable population — promises that proved to be false,” said Matt Mittenthal, a spokesman for the attorney general, referring to Rivington House and a nursing home bought by Allure in the Bedford-Stuyvesant section of Brooklyn, which were closed within a year of a court petition’s being filed. “Until we conclude our investigation, we will object to Allure buying additional nursing homes.”
In New York, any nonprofit seeking to sell its assets must petition a state court for approval; the attorney general reviews all such requests and can object if there are grounds to do so. The court has the final say....
The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016, the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion. That number is "up" by a billion dollars over the first half of fiscal year 2016.
Tuesday, June 7, 2016
John Oliver, in his typically over-the-top, but still informative manner, focuses on the industry of debt collection and how it can be especially troublesome for older adults. Indeed, when I was running an Elder Protection Clinic for Dickinson Law, a significant percentage of our clients were struggling with "old" debts, often connected to health care costs, and were dealing with aggressive attempts to recover what has come to be known as "zombie debt." One woman interviewed about $80k in debt arising out of denial for insurance coverage for her elderly husband's hospitalization for breathing problems, describes her fear and frustration after a lifetime of working and saving. She asks, "Is this how my life is going to end?"
Our thanks to Karen Miller, Esq., in Florida, for sending this link.
We've reported earlier, including here and here, about recent financial and management issues at a Tampa, Florida continuing care retirement community that operates under the name of University Village. The latest event is the May 31, 2016 order of an administrative law judge that would uphold the decision of the Florida Agency for Health Care Administration to revoke the license for operation of a skilled nursing facility at University Village..
Many of the concerns appear to focus on the alleged action (or inaction) of an individual, John Bartle, who is described as holding various titles in the company that controls the CCRC's operations. At one point, the Administrative Law Judge made clear his view on Bartle's testimony:
The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible.
My thanks to Karen Miller, Esq. for sharing this unusual ruling.
Monday, June 6, 2016
Justice in Aging (formerly known to many of us as the National Senior Citizens Law Center) covered a timely and important topic in their May, 2016 Issue Brief. Voluntary Means Voluntary: Coordinating Medicaid HCBS with Family Assistance was authored by Eric Carlson, well know nationally for his work regarding residents of long term care facilities. The issue brief runs 8 pages. Here is the executive summary:
When an older adult can no longer can live independently, and is eligible for Medicaid, he or she often qualifies for home and community-based services (HCBS) that enable the individual to stay at home, rather than move to a nursing facility or other health care institution. The same is true for persons with disabilities. HCBS are provided under a service plan; under federal Medicaid regulations effective since March 2014, those service plans cannot compel unpaid assistance by family members such as adult children.
As illustrated by Medicaid hearing decisions from Florida, however, state Medicaid programs (frequently through managed care organizations) often compel unpaid assistance from family members. The managed care organizations (MCOs) authorize service levels with the presumption that family members should be providing a certain level of personal care assistance. This leads to a lower level of Medicaid-funded service hours, which in turn requires family members to provide assistance to cover the service gap.
One problem in Florida is a "medical necessity" definition that denies Medicaid-funded services to the extent that those services are provided for caregiver convenience. This definition has been cited by MCOs and hearing officers to justify reduced levels of services, even when the caregiver’s "convenience" is his or her need to hold employment outside the home. Furthermore, twelve other states also have a similar "caregiver convenience" provision in the state’s Medicaid medical necessity definition.
In Florida and across the country, Medicaid beneficiaries and their advocates should address this problem. Florida advocates have made some progress in this area, and the state now agrees that service authorizations should respect a family caregiver’s outside employment. The Florida experience suggests the type of advocacy that could and should be pursued in Florida and other states. In individual service requests and appeals, beneficiaries and advocates should forcefully assert the voluntariness requirement of the federal service planning regulations. On a systemic level, advocates should argue for the removal or revision of "caregiver convenience" provisions, and advocate for service authorization procedures that explicitly incorporate the voluntariness requirement.
This issue brief is a "must read" for all elderlaw profs, attorneys and other advocates. A pdf of the issue brief is available here.
Thursday, June 2, 2016
Recently I was at a dinner party with academics from across the spectrum of my university. As often happens, a group of us seated together for the meal swapped basic information about what we do in our day jobs. It was a fun group of art professors, special education specialists, and even an agricultural economist. We talked art and politics across the board. I had at first identified myself only as a professor at the law school, but during a lull in the conversation I explained my area was "law and aging" generally and more specifically the work of elder law attorneys. Ears perked up.
I had that experience that I suspect doctors have all the time. Everyone at the table had a question or story to tell of their family's recent aging issue. And as I listened, I recognized a common theme among these skilled, thoughtful professionals. I kept hearing that we knew "mom" or "aunt" or "grandpa" was getting older, and we offered help, but the help we offered either wasn't enough or was rejected outright. And often, the second part of their stories involved a "crisis." A particularly poignant example was the caring granddaughter who cooked and froze two weeks of meals for her frail, housebound grandmother, only to realize that her grandmother's "little bit of confusion" resulted in her opening all of the 14 days of dinners on the very first day. It precipitated a diabetic crisis for the grandmother, as well as the loss of the majority of the food.
Over the dinner, I was surprised to find myself talking a lot about what is dementia (and does it differ from Alzheimer's) and whether it can be distinguished from "temporary" conditions that cause short term confusion. Everyone at the table was searching for answers and admitting they didn't know enough before the crisis event. And I could completely empathize, because even with some 20 years of being fairly deeply immersed in elder care issues, I am regularly surprised by some new topic or challenge in my own family.
I had good reason to think about the party conversation again while listening to WITF-FM Public Radio's Smart Talk program on June 2. The program's guests were Dr. Linda Rhodes, the former Secretary of Aging for Pennsylvania, and Joan Krechmer, a geriatric care manager and the executive director for Jewish Family Services, in York, Pennsylvania and the topic was "Caring for Mom, Dad and Kids." Lots of people calling in and writing with very specific questions, and many of the questions were triggered by both crisis events and chronic care issues.
An example of one question was from a family member who was told the family had "24 hours" to decide about a skilled nursing facility when their loved one was being discharged from the hospital. "There is barely time to do the research" the program guests were talking about. And that is true. Even though federal law imposes a protocol on hospitals about discharge notices, and even provides a mechanism for informal appeal, which if triggered properly can automatically result in more time, most people simply won't know about that short-term remedy in advance.
The Smart Talk radio program is part of a larger series of events on the topic of family care-giving, including airing of the PBS television documentary on Caring for Mom & Dad and in-person sessions at area locations to talk about advance planning and identify resources in advance of a crisis.
Linda Rhodes, the former PA Secretary of Aging has written her own book, Caring for Aging Parents: The Essential Guide.
Have a plan to retire? Know how you will spend your time? AgeWave, along with Bank of America Merrill Lynch did a study on how people spend their retirements. Beyond the Bucket List: Experience Leisure in a Whole New Way provides the highlights from the study.
Huffington Post ran two blog posts that discussed the report. New Study Uncovers the Upside of Retirement Leisure: The Freedom Zone was published on May 12, 2016 and New Study Reveals Four Distinct Stages of Retirement Leisure on May 13, 2016. The report notes that people who are retired have more free time, but transitioning from work to retirement may be a challenge for some, since, according to the report, many folks work even when they are on vacation. The report discusses emotional well-being and the value of experience over acquisition. The report also discusses the importance of saving for retirement. The report identifies "4 stages of retirement leisure" from "winding down & gearing up" to "contentment & accommodation."
To read the full report, register with Merrill Lynch to download it.
Tuesday, May 31, 2016
The annual American Society on Aging (ASA) conference is scheduled for March 20-24, 2017 in Chicago. The planning committee is now accepting proposals to present at the conference. For more information or to submit a proposal, click here. The deadline for submitting a proposal is June 30, 2017.
May 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)
Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.
Thursday, May 26, 2016
We all know folks who are the glass half-full type (optimist), as well as the glass half-empty type (pessimist). When one talks to those folks, how those folks interpret what they hear depends on what "glass type" they are. The Journal of the American Medical Association (JAMA) ran a story about a study, Prevalence of and Factors Related to Discordance About Prognosis Between Physicians and Surrogate Decision Makers of Critically Ill Patients. According to the abstract, "[m]isperceptions about prognosis by individuals making decisions for incapacitated critically ill patients (surrogates) are common and often attributed to poor comprehension of medical information."
The authors noted how important it is for the health care surrogate to have information in order to make a health care decision for the patient. But, according to the study,
Numerous studies over the last 3 decades indicate that surrogates of patients with advanced illness often have optimistic expectations about prognosis. This is problematic because optimistic expectations are associated with more use of invasive treatments in dying patients and delayed integration of palliative care. Clinicians cite unrealistic expectations by surrogates as one of the most important barriers to high-quality end-of-life care in seriously ill patients.(citations omitted).
The authors look at some of the reasons for this disparity in viewpoint (including the lack of medical knowledge by surrogates). Here is one example of their findings regarding the disparity of views:
Physician-surrogate discordance about prognosis occurred in 122 of 229 instances (53%; 95% CI, 46.8%-59.7%). Among the 229 surrogates participating in the study, 98 (43%) were more optimistic than physicians and 24 (10%) were more pessimistic. Sixty-five instances (28%) were related to a combination of misunderstandings by surrogates and differences in belief between the physician and surrogate about the patient’s prognosis; 38 (17%) were related to misunderstanding only; 7 (3%) were related to different beliefs; and data were missing for 12.
The authors explore the reasons for the surrogates' glass half-full view and learned that the surrogates felt that a positive attitude: "would improve the patient’s outcomes or protect themselves from emotional distress"; was justified because they knew the patient better than the doctor, including knowing if the patient were a strong person; and/or was based on their religious beliefs.
The study also explored the glass half-empty views of surrogates. The study authors concluded that "[a]mong critically ill patients receiving care in ICUs, discordant expectations about prognosis were common betwTeen patients’ physicians and surrogate decision makers and were related to both misunderstandings by surrogates about physicians’ assessments of patients’ prognoses and differences in beliefs about patients’ prognoses."
The article is available here for free
Senior residential care provider Life Care Centers of America is the focus of recent legal news, including:
- KOAA TV 5 News: Colorado Jury Awards $5.5 million in wrongful death suit against Life Care Center of Pueblo.
- Chattanooga Times Free Press: Settlement May be Brewing in Government's Longtime Federal Case alleging False Claims - Billing Practices by Life Care Centers of America
Plaintiffs' Class Certified in Dispute over LTC Insurance Coverage for Care by "Managed Residential Communities" or "Assisted Living Services Agencies"
As we've reported fairly often on this Blog (see e.g., here, re California litigation), the long-term care insurance (LTCI) industry has been battling disputes on many fronts. One of the fronts is whether insurers can deny benefits to pay for care provided in settings other than "skilled nursing facilities." On March 1, 2016, a federal court in Connecticut granted class certification to estates and policy holders who are challenging denial of coverage for stays in "managed residential communities" (MRCs) in Connecticut or to cover services provided through "assisted living services agencies" (ALSAs). In Estate of Gardner v. Continental Casualty Company, 2016 WL 806823, the court agreed the plaintiffs had satisfied the class certification requirements for "numerosity," commonality, and typicality of issues, as well as establishing grounds to argue "imminence of injury" to support a claim for injunctive relief:
While Plaintiffs do seek monetary relief, it appears to the Court that what they primarily seek is forward-looking relief. Plaintiffs purchased long-term care policies, presumably with the expectation that they would utilize their coverage over a long term. Any adequate remedy would have to ensure that they could obtain coverage for claims prospectively. For that, an injunction is required. Moreover, Plaintiffs leave no ambiguity about the content of the injunction they seek: an end to Defendant's alleged policy of denying claims for assisted-living facilities across the board. This is exactly the type of relief Rule 23(b)(2) was designed to facilitate. Because Plaintiffs' proposed Rule 23(b)(2) class satisfied all of the requirements of Rule 23, certification is proper.
For more on the background of the Connecticut case, see "Connecticut class action accuses insurer of denying assisted-living claims."
Tuesday, May 24, 2016
A very sad story hit the news last week. A Florida man killed his chronically ill wife because they couldn't afford her prescriptions. Florida Man Says He Killed Sick Wife Because He Couldn’t Afford Her Medicine, Sheriff Says explains that the husband in the over 50 year marriage told the law enforcement officer who responded to the call that "[t]he cost of her medications had become so burdensome that they could no longer afford it ... [s]o on Monday morning while she was sleeping, he shot her in the head...." According to the article the husband has been charged with premeditated first degree murder. A representative of the Sherriff's office was quoted as saying that the husband "was perfectly clear on that he was going to be arrested and go to jail, but again, he felt that this is where it had gotten to him and this was his course of action... showed emotion and he was very clear that he was out of options in his mind.” At the time of the story, according to the article, there was no information about their health insurance status.
This story notes the issues with elders on fixed incomes and the costs of medications. There have been stories in the press of late about price spikes in certain medications and the Senate Committee on Aging has held two hearings this year on the topic, available here and here.
On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community. In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children." The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.
On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of] 60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.
The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:
Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.
The finding of breach appeared to have been predicated on the contract's specified grounds permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.
Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.
In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers. Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.
Monday, May 23, 2016
California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law
I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S. For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs. At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims. This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc. In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:
We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist. What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.
The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."
The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities. The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.
This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act.
Sunday, May 22, 2016
Two ABA commissions and two ABA sections have created the PRACTICAL supported decision-making tool for lawyers which "aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship." PRACTICAL is the acronym for the steps the lawyer takes to identify the options both during the interview with the client and after when considering the case. The tool is available both as a fillable pdf or a word document. There is also an accompanying resource guide in pdf.
Download your copy now!
Friday, May 20, 2016
I had mentioned previously that I was looking at the Genworth annual cost of care survey. As a corollary, Genworth has information about who provides care, referred to as The Expanding Circle of Care. The website mentions the caregivers, with "[t]he Beyond Dollars Research reveal[ing] 5 key insights on the true impact of long term care." The Expanding Circle of Care Beyond Dollars 2015 explains the 5 "key insights" in the executive summary. The circle of care is explained as:
The financial, physical and emotional demands of providing care for a loved one can sometimes be more than a single caregiver can handle. The good news is that more family members are helping provide care. The opportunity to plan for the likelihood of needing long term care before a crisis situation occurs remains large. Our research has shown that a "Circle of Care" often forms around the care recipient, involving people who provide different levels and types of support.
The second insight is that although caregivers are positive about their role of caregivers, they note that "[c]aregiving can negatively impact health & well-being", including familial relationships and interactions with friends. The third insight is instructive regarding the future: "Caregivers’ savings and retirement funds are at risk"
Caregivers who help provide financial assistance for the care of their loved ones estimate that they pay, on average, a total of about $10,000 in out-of-pocket expenses.
That’s up from an average of $7,285 in 2010. Those financial expenses can include everything from household expenses, personal items, or transportation services, to payment of informal caregivers or long term care facilities.
Most caregivers did not anticipate or plan for this expenditure. In many cases, they are cutting back on personal spending and savings. More significantly, some may be jeopardizing their own financial futures.
It follows logically then that the fourth insight builds from the third one: "Caregivers’ careers and livelihoods are impacted by providing care." The caregivers who work reported a definite impact on their jobs, which in turn impacts the caregiver's bottom line. "Absences, reduced hours and chronic tardiness can translate into a significant reduction in a caregiver’s paycheck."
The executive summary is available here.