Yet, no matter how good-natured everyone is, sacrifices are inevitable. [One generation] wanted a washer and dryer on the main living level for their parents’ easy access, but that required making the living space smaller. So laundry facilities went downstairs.... “Melding design, finance and emotion is an art, not a science,” said the president of one design firm interviewed for the article. "Nevertheless, 'if you’re creative, you’re willing and you have good relationships, you can make it happen. We’re average Joes and we did it,'" said another generation while a member of the third generation offered that “It’s not like some fairy tale where everyone is always happy and gets their way, but the benefits are better than the costs.”
Monday, May 21, 2018
From Singapore, comes a recent article in The Independent titled "Asia's Ageing Crisis Calls for Innovative Senior Housing Models and Foreign Investment." The article begins:
Asia is facing an ageing crisis with rising life expectancies and record low birth rates in some countries, as a result there is an increasing need for senior housing to cater to Asia’s ageing population. In a new report released today, Colliers International identified key trends in Asia’s demographic shift as well as innovative senior housing models around the globe which may be applicable to this region. . . .
Mr. Govinda Singh, Executive Director, Valuation and Advisory Services at Colliers International, said, "Singapore's greying population presents many opportunities for both policymakers and private developers to further invest in senior housing solutions. Demand for such accommodation will be also spurred by the rising awareness of healthcare and wellness benefits, and retirees having the financial capacity to take advantage of senior living services and facilities." . . .
On May 12, 2018, Singapore Prime Minister Lee Hsien Loong officially opened the country’s first retirement community Kampung Admiralty in Woodlands – an integrated residential development with a range of healthcare, elder and childcare facilities, together with commercial space to serve residents of the area. The concept was conceived by the Housing and Development Board more than four years ago.
The article noted population trends in the region, including the prediction that Asia's population of people over age 65 will "nearly triple by 2050 to 945 million, while the percentage of people over age 75 will often be "staggering," especially in Japan (36.4%), South Korea (35.3%), Hong Kong (33.9%), and Thailand (29%) by 2050.
Tuesday, May 15, 2018
Kaiser Health News ran an interesting story about couples, committed to each other, but living apart, noting that experts have named this as "living apart together." Living Apart Together: A New Option for Older Adults explains about older couples who are seriously committed to each other, spend a lot of time together, including romantic time, but do not live together. This is described as “a new, emerging form of family, especially among older adults, that’s on the rise,” said Laura Funk, an associate professor of sociology at the University of Manitoba in Canada who’s written about living apart together." There are several studies examining the frequency, scope and effect of these types of relationships (shortened to LATs). A number of reasons are given as to why these couples choose to not live together but wanted a companion, including those who seek “intimate companionship” while maintaining their own homes, social circles, customary activities and finances ...." As well, those who had been caregivers, or had a bad marriage or a marriage ending in divorce seem to prefer to not live together. The article offers some fascinating anecdotes.
Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session. I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July. The pending legislation includes:
- Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth. On April 16, 2018 this bill was referred to the Senate Appropriations Committee.
I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons. The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications.
- House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."
While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth. In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional. Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.
May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Sunday, May 13, 2018
The intersection of land use and zoning laws and regs with a person's ability to live at home is so important. I wanted to let you know about a new article on the topic: A Primer on Disability for Land Use and Zoning Law posted recently on SSRN. The article is published in Volume 4 of the Journal of Law, Property, and Society at 1 (March 2018). Here is the abstract
Approximately 20-30 percent of American families have a family member with a disability, many with a mobility impairment. Many people need access to disability services and programs. They need the availability of group homes, senior housing, drug rehabilitation centers, medical marijuana dispensaries, and counseling clinics. This leads to land use disputes.
This Primer is designed for people familiar with property law and land regulation (planning and zoning), and with little experience with disability law. The goal is to present an introduction that facilitates understanding of the intersections between land use law and disability. In general, the legal requirements of primary concern are limited, such that only a few parts of our expansive disability law are most relevant to the vast majority of planning and zoning matters. This Primer will guide the reader through these key provisions. The Acts discussed in this Primer include the Americans with Disabilities Act (ADA), the Rehabilitation Act (RHA), and the Fair Housing Act (FHA).
The 45 page article is available for download as a pdf from the Journal's website, here.
Thursday, May 3, 2018
Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania. It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing. On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption." Doesn't that title capture the mood of the country?!
Practical workshops include:
- Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
- Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
- Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
- Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
- Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
- Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
- Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
- Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis
Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues). Registration is here.
May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Frequent reader Karen Miller from Florida made a timely catch by sending me two articles that both mention the "peace of mind" that can accompany living in purpose-planned retirement communities, including CCRCs or LPCs. Thanks, Karen!
In last Sunday's edition of the New York Times, reporter Peter Finch offered "How to Talk About Moving to a Retirement Home: It's a Journey." He includes admissions by once highly reluctant residents, including one who finally gave in to his wife's desire for a new setting:
For the once-skeptical Mr. Strumsky, it took only days for him to start feeling certain that he and his wife, who is 72, had made the right decision. About a week after moving in at Charlestown [a retirement community outside of Baltimore], he went out to walk the dog at night and ran into a pair of women he didn’t know who were chatting amiably in the parking lot. About 25 minutes later, he returned home and saw the same women, still talking.
“They were so unconcerned about their personal safety, they were oblivious to anything going on around them,” Mr. Strumsky said. “And it just hit me: I really wished my mother or my sister or my aunt could have had this experience, to feel that safe and secure. At that point, it was like a light bulb going on. It was an instant turnaround for me.”
By contrast, Patricia Hunt, a columnist for the News Leader (part of the USA Today Network), writes about "friends whining about the rules of their . . . subdivision," noting that the security that some people seek can come with a regulatory price tag, even if the regulator isn't the government. She writes in part:
In retirement many people with the means to do so choose a “continuing care retirement community.” There is a big price range, but basically you pay an entrance fee, and most require that you be well enough to live independently to be admitted. They provide food service, activities, and stepped up sections for “assisted living” and for the most debilitated, “skilled nursing care.” This is the most expensive option for one’s last years.
But the rules for the residents of CCRCs are set entirely by people who do not live in them. And flexibility is the most restricted of all options. If you grandson who ran away to join the circus can be talked into living with you for a few months until he can sort things out with his parents, you cannot let him do that. If you decline in health and your granddaughter is willing to come live with you so you don’t to go to assisted living or skilled nursing care, you can’t do that either. You can hire people to come in night and day, but your family member cannot simply move in. She must have another permanent address. At least this is how most of them work.
If you[r] adult child gets sick or loses a job and needs to stay with you, it is not allowed. And you may not have the money to help him or her out if you have spent it all on the entrance fee and monthly fees.
Hunt concludes by questioning whether people "really" do hate regulation, noting "there is plenty of evidence of that some of them are not only willing to live with more regulations than many other people, they are willing to pay a lot of money to do so."
For more from Hunt, read the full column "We Hate Regulation, But We Willingly Trade Away Our Basic Freedoms for Comfort, Security."
May 3, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)
Monday, April 30, 2018
Recently the Washington Post ran an article about multigenerational homes increasing in popularity. Homes with multigenerational family members are a growing trend begins with a story of a three-generation family living in one household. So is that what it means to have a multigenerational household? "Pew Research Center defines a multigenerational household as one with grandparents and grandchildren or with two or more adult generations. The trend since 1980 is more people living in multigenerational homes, and a higher number of multigenerational households...." according to a Pew expert quoted for the article. In 2016 the article notes, 20% of Americans live in multigenerational households. This trend has even affected builders who are designing some homes to accommodate these families. But it's not all about the design, the article notes. There are costs, real and emotional, that come with multigenerational households. Design typically includes communal living spaces, such as a kitchen or living room. Compromise is the key to success here. As one of the families feeatured in the story offered
Thursday, April 26, 2018
In Continuing Care or Life Plan Communities, Do Operators Face Liability for "Failing" to Transfer Residents to Higher Levels of Care?
Just as spring is finally seeming to arrive in the Mid-Atlantic region and I'm catching up on non-classroom projects, I realized I hadn't fully understood the potential legal issues in a tragic fact pattern from last winter, when an 85 year old women died after being trapped overnight outside her home near Philadelphia in March. The legal issues are outlined in a suit filed against the CCRC where she was living in an "independent living" unit. The lawsuit claims her "caregivers should have known" that she needed more care, pointing to the contractual language that permitted the facility to assess and transfer her to a more supervised setting as her care needs increased. From the Philadelphia Inquirer on February 9, 2018 :
Her son, Blake Rowe, a drug company scientist, has filed suit against Shannondell at Valley Forge in Audubon and its security company, Universal Protection Service LLC, claiming that they should have done more to protect his mother. She had been allowed to stay in an independent-living apartment after Shannondell knew she had a tendency to become confused and wander aimlessly, the suit says.
“I put my trust in them. They said they would do an assessment they never did,” said Rowe, who got the “horrible” news that his mother was in the hospital as his plane landed in Florida for his honeymoon. As for the security company, he said, “If they were doing their rounds, someone would not be at a door for five hours freezing to death.”
Ironically, I often hear from family members protesting the compelled transition of a resident to a higher level of care, as the family members may disagree more help is needed, or feel the help can be provided adequately "in" the independent living unit. The Inquirer article summarizes the dilemma for operators and families:
The Hinds case also illustrates a trend in senior housing — at all levels of care, including independent living, residents are older and have more health problems than in the past — with safety implications that may surprise families. Most seniors want to be as independent as they can for as long as they can. Families shopping for senior apartments may want to look beyond the quality of the food or beauty of the grounds and ask what will happen when a loved one declines: Were your buildings and security designed with dementia in mind? Whose job is it — the family’s or the facility’s — to start the conversation when a resident needs more help?
For more on the "Hinds" case, see His Elderly Mother Wandered Out Into the Cold and Died. Whose Fault Was It?
April 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, April 25, 2018
On April 24, 2018, members of the Organization of Residents Association of New Jersey, or ORANJ, held a plenary meeting at Cedar Crest Retirement Community in Pompton Plains, New Jersey. ORANJ President Ron Whalen began the meeting with an update on pending legislation attempting to resolve residents' concerns about timeliness of payments on "refundable fee agreements." Part of the message is reflected in the history of Pat Lund, a resident of a CCRC in Waterford Township, New Jersey, who waited eight years for her "refundable fee" to be paid after moving out of her apartment. Under the terms of her contract, the refund was not "payable" until someone else occupied her specific unit but the facility seemed to have little interest or incentive to market her particular unit. For more on this topic, see my update post from last week. As summarized by Ron Whalen, "many of the 10,000 New Jersey residents in CCRCs (also known as Life Plan Communities or LPCs) have this type of contract."
James McCracken, the new president and CEO of LeadingAge New Jersey was the afternoon speaker and he provided a roundup of topics affecting older adults in New Jersey as the legislative season draws to a close, including concerns about "earned sick leave," delayed Medicaid payments by the state to care facilities, proposed minimums on CNA staffing at care facilities, and changes to minimum wage.
I spoke in the morning about issues I see affecting CCRCs and LPCs nationally and in New Jersey, including topics that challenge tax-exempt CCRCs, such as pressure to make payments in lieu of taxes to state and local authorities. On the topic of resident concerns, I addressed what I call the "big three": lack of transparency on cost and funding issues, the need for effective resident voices in governance, and excessively paternalistic attitudes of some management.
This is at least my third time speaking with ORANJ members over a period of several years, and each time I visit I'm impressed with the strength of their resident organization and their ability to get the state legislature to listen. ORANJ helped their state to be one of the first to get legislative support for CCRC residents gaining the statutory right to serve as voting members on boards of governance, and ORANJ advocacy was also instrumental in passage of an enhanced "bill of resident rights" for CCRC operations.
New Jersey has approximately 40 CCRC/LPC communities within the state. Some 87 percent operate as not-for-profit, while another 13 percent are for profit. The majority of the communities are now part of "multi-site" organizations, and I spoke with several residents who reported on pending conversions of not-for-profit to for-profit.
April 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, April 18, 2018
The New Jersey Legislature is considering changes to the state's laws governing "refundable" entrance fee agreements used by some Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities.
Assembly Bills 2747/880 (and a similar bill in the New Jersey Senate, Senate Bill 1532) would limit the amount of time that CCRCs are permitted to retain "refundable" entrances fees after a resident vacates the facility. The Assembly's bills are moving first, with significant floor amendments adopted on April 12, 2018. Refundable entrance fees function, in essence, as a type of interest-free loan by the resident to the community.
The legislative statement accompanying Assembly Bill 2747 explains the original purpose of the proposed changes:
Under current law, a continuing care retirement community may retain an entrance fee for as long as it takes for the unit to be reoccupied by another resident. Absent a maximum refunding period, there is little incentive for the facility manages to aggressively market any particular unit. In some instances, a facility has retained the fee for several years after the unit has been vacated, unreasonably delaying the return of the fee. Further, if the resident has died, an estate may be forced to pay distribution taxes on money representing the fee refund, years before the estate and beneficiaries receive that fee refund.
At the heart of the proposals is a system by which each fully vacated unit would be assigned a "sequential number" that would create an order of priority for payment of refunds, triggered when any refundable fee unit is resold. Under the changes as originally proposed, the law would take immediate effect once passed.
The April 2018 floor amendments tinker with the language about the timing of the refunds (and my first impression is the language is confusing and could create a potential for manipulation of the order of repayments even after a sequential number has been assigned). In addition, the floor amendments permit the facility to apply for an "alternate" method of paying refundable entrance fees based on the units' "similarity" of size and other factors; this change favors the facility. The third change delays the law's implementation date for 90 days after enactment, and also provides that the mandatory sequential numbering system, intended to lead to more timely refunds, would apply only to CCRC agreements entered into on or after the effective date of the newly revised law.
After catching up on the New Jersey legislature under consideration, it occured to me I should check-in on a New Jersey lawsuit about "refundable" entrance fees. In 2015, in the case of DeSimone v. Springpoint Senior Living, Inc., the appellate division of the New Jersey Superior Court permitted residents to continue with their case asserting violation of state laws, arising out of the operators' alleged misrepresentation or failure to disclose a practice whereby the outgoing resident's refundable fees could be subject to reduction if the "resale" of that unit to an incoming resident was resold with a lower entrance fee. The appellate division explained in an unpublished opinion:
If Springpoint's staff or brochures distributed to the DeSimone family misrepresented the terms of the contract by the "lesser of" terms, or failing to disclose that the entrance fee was subject to market trends, and that the entrance fees were already being reduced by Springpoint due to market forces, plaintiff may be able to prove its various causes of action, including a violation of the [state's Consumer Fraud Act].
A clear understanding of this reduction is important because the marketing offices may "discount" entrance fees to attract new residents, hoping to cover operating costs with monthly service fees, including any increases over time. Refundable entrance fees are typically higher than nonrefundable entrance fees. In Ms. DeSimone's case, she had paid $159,000, under a 90% refundable fee plan (plus monthly services fees, based on level of care). She passed away about 16 months later. The facility allegedly sent her estate a refund check for only $80,136, apparently reflecting, at least in part, the fact that the next resident of her unit paid a discounted entrance fee of $127,000.
Checking in with Michael Coren, one of the lawyers representing the plaintiffs in the Springpoint case, I learned the parties have been actively pursuing discovery, and are nearing the stage where the plaintiffs' attorneys will soon ask for certification of the plaintiffs' class. Since the original suit was filed, when there were five Springpoint CCRCs in New Jersey, the nonprofit Springpoint holdings have grown, through acquisition of three existing operations.
These two developments in New Jersey remind me that the reason I added "Contract Law" to my teaching package (replacing Evidence) was because of how much time I was spending looking at contracts and consumer protection issues in elder law matters.
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Sunday, April 8, 2018
During Dickinson Law's recent program on Dementia Diagnosis and the Law, one of our panelists, Elder Law practitioner Sally Schoffstall raised an issue planning professionals are seeing more often, families who are concerned about the long-range needs of children with developmental disabilities. I know that over the years I have often had law students whose interest in disability and estate planning law began with a brother or sister with special needs, and they are thinking about their own future roles in helping the family plan.
The good news is that better early health care often means an extended life for disabled children, but that very fact raises the probabilities on living longer than the people who have been primary caregivers, especially their parents. As we heard from medical professionals at our conference, individuals with Down Syndrome, for example, are now less likely to succumb to physical impairments such as developmental heart problems, but still face a significant risk of early onset of dementias, with an estimated 30 percent of those in their 50s already experiencing symptoms similar to Alzheimer's Disease.
On May 21-22, a St. Louis-based nonprofit organization, Association on Aging with Developmental Disabilities (AADD) will hold its 28th annual conference. The conference draws an audience of professionals from a wide range, including social workers, nurses and other service providers. As with most people, individuals with disabilities want to "age in place," and that takes extra planning to manage financial assets. Pamela Merkle, executive director for AADD explains:
"Sessions will focus on giving them the tools they need to successfully support people with developmental disabilities who are aging,” says Merkle.
She explains that many of the issues faced by older persons with developmental disabilities mirror those of aging individuals in general, such as isolation, depression and how to handle retirement. “Like most people, they want to ‘age in place,’ not spend their golden years in a nursing home. Given that living within the community is more cost-effective, it’s important to both the seniors and our communities that there be more public programs to support that choice,” she continues. . . .
For individuals who are 50 or older, AADD offers retirement services. While some of the participants have held community-based jobs, others spent decades in sheltered workshops. As with many members of the general population, they often tend to define themselves through the jobs they held for so many years. “So we focus on identity: ‘I’m a volunteer” or “I’m active in my church,’” explains Merkle. “If you don’t have something in place to fill the void after retirement and to maintain the skills you’ve developed, you’ll retire to your couch. You won’t be an active part of the community, and will most likely spend your “golden years” alone.”
For more, see this commentary from the Special Needs Alliance, and look for related links. My thanks to Sally for providing links to this conference information!
April 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (0)
Thursday, March 29, 2018
Penn State's Dickinson Law Hosts Pennsylvania Judges for Program on "Dementia Diagnosis and the Law"
On Thursday, March 29, 2018 Penn State's Dickinson Law hosted a continuing judicial education program for the Pennsylvania Judiciary, with live attendance in Carlisle by more than 30 judges and with even more judges around the state participating via a live stream. The program was "Dementia Diagnosis and the Law," organized into three parts:
Part 1: Medical Science and Dementia
- Welcome by Dean Gary Gildin, Dickinson Law
- Keynote Presentation: Age-Related Cognitive Decline
- Krish Sathian, M.D., Ph.D., Professor of Neurology and Chair of the Department of Neurology for Penn State College of Medicine and Penn State Health Milton S. Hershey Medical Center
- Medical Perspectives – Responding to Legal and Ethical Quandaries of a Diagnosis: Two Brief Vignettes
- Associate Professor Claire Flaherty, Ph.D., Penn State College of Medicine, Department of Neurology
Panel Discussion and Audience Q & A
Part 2: Legal Implications of a Diagnosis of Dementia
- Keynote Presentation: Clinical, Legal and Judicial Judgments of Capacity in Persons with Dementia
- Daniel C. Marson, Ph.D., JD., Professor Emeritus, Department of Neurology, School of Medicine, University of Alabama at Birmingham
- Why “Guardianship Oversight” is a Hot National (and State) Topic
- Professor Katherine C. Pearson, Dickinson Law, Pennsylvania State University
Panel Discussion and Audience Q & A
Part 3: Adjudication Exercises, facilitated by Professor Tiffany Jeffers, Dickinson Law, with Dickinson Law students in role plays on issues about capacity to contract, limited guardians, the roles of guardians ad litem and the potential for attorneys or judges to become affected by a neurocognitive disorder.
- Panel Discussion and Audience Q & A
Panel Members included:
- The Honorable Lois Murphy, Judge, Montgomery County Court of Common Pleas
- The Honorable Paula Ott, Judge Superior Court of Pennsylvania
- Sally L. Schoffstall, Schoffstall Elder Law LLC, Orefield, PA.
- Laurel S. Terry, H. Laddie Montague Jr. Chair in Law & Professor of Law, Penn State’s Dickinson Law
As the law school's organizer for the event, I know I learned a lot from this dynamic group of seasoned experts who spoke on the challenging legal, medical, and judicial issues that can arise from cognitive impairments associated with aging. The judges in our audiences were fully engaged, offering great comments, questions and experiences.
My special thanks to each and every one of the speakers, facilitators, judges, lawyers and students who made the program so informative. It was fun to work with the Administrative Office of the Pennsylvania Courts on this project and we look forward to additional opportunities to collaborate in the future. Once I catch up a little on my day job (and maybe on some missed sleep), I'll post again with some additional reactions and thoughts from this program.
March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Science | Permalink | Comments (1)
Tuesday, March 27, 2018
Florida's governor signed into law a bill that requires nursing homes and ALFs to have generators. The Tampa Bay Times reports that facilities will be required to not only have the generators but sufficient fuel. Rick Scott signs bills requiring generators in nursing homes, assisted living facilities explains that "[t]he bills require the facilities to keep backup generators capable of running air conditioners when the power goes out. They must provide at least 30 square feet of cool space for each resident – at a temperature of no more than 81 degrees – and keep several days worth of fuel on hand."
With hurricane season starting June 1, 2018, it's time to be prepared!
The New York Times has a good overview on 7 Ways to Judge a Retirement Community's Financial Health, by Peter Finch, published on March 9, 2018. Many of the tips come from savvy residents at Continuing Care Retirement Communities (CCRCs, also called LifePlan Communities) around the country, as well as from actuaries and industry experts.
As consumers grow more aware of risk at all levels of financial markets, senior living providers are facing good questions about how upfront entrance payments and monthly fees are used. Other topics include appropriate occupancy levels, the history of rate increases, debt ratings that can affect cost of operations and loans, capital improvements, reserves and the right of residents to be engaged on governance issues.
From the article:
Retirement community managers will not be shocked by these sorts of questions, promised Stephen Maag, director of residential communities at LeadingAge, an association of aging-service providers. “As we get the people born in the late ’30s and the baby boomers, they’re much more thorough in their research” than their parents and grandparents were, he said.
My thanks to my colleague Laurel Terry, for sending me this article. I especially enjoyed seeing two friends highlighted in the article, Jack and Valerie Cumming, residents of a CCRC in Carlsbad, California. When I visited with them a few years ago, I was happily amused to realize their lovely CCRC was once the hotel where my own parents spent their honeymoon. How about that for a sign of the times - - honeymoon spots that become retirement villages!
I was a bit surprised to read an article this month reporting that Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities, are experiencing not just growth in occupancy over the last 12 months, but comprise "the only segment of senior living and long-term care to see increased occupancy in 2018." Lois Bowers, senior editor at McKnight's Senior Living provides the summary of the study:
The stabilized occupancy rate for CCRCs has increased 30 basis points to 91.5% over the past 12 months and has stayed in the low 90s for the past 10 years, according to the company's senior housing research national report for the first half of 2018.
“Rent growth remains strong, with the average advancing 3.2 percent to $3,322 per month in 2018,” the authors wrote about CCRCs, also known as life plan communities.
Independent living is the big draw in these communities, where many operators are reducing the number of skilled nursing beds, according to the report.
For more, read CCRCs Alone in Occupancy Increase This Year, Report Says.
Friday, March 23, 2018
On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations, calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships.
As set forth in the press release, NCD's findings include:
- Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
- Capacity determinations often lack sufficient scientific or evidentiary basis.
- Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
- People with disabilities are often denied due process rights in guardianship proceedings.
- Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
- Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
- There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.
NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.
Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.
My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.
March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, March 15, 2018
Margaritaville, at least the Jimmy Buffett version, is no longer a state of mind. The Washington Post ran a story about Jimmy Buffett's foray into senior housing. Adopting a laid-back attitude at Latitude Margaritaville explains that the "Key West-inspired houses are being built along streets linked to lyrics of Buffett’s 1977 hit 'Margaritaville.'" Continuing the them, the pet spa is "Barkaritaville" and the fitness center is "Fins up!" Guess what's on the menu at the local restaurant? If you guessed "Cheeseburger in Paradise" you'd be right! And as the article makes clear, Buffett is a significant business entrepreneur.
How's this for fun in a 55+ community. "[O]ne element of Latitude Margaritaville that makes it unusual for an active-adult community: Live music shows will be scheduled five to seven nights a week." But why a 55+ community for Jimmy Buffett? "he decision to expand the Margaritaville brand into active-adult communities seems like a natural fit, particularly because Buffett’s fans tend to be aging baby boomers who have followed his career for decades." And fans have come-with over 100,000 requesting information about the planned community. The homes are selling like hot cakes (or maybe sponge cake would be better to say) with over 225 selling within two months. However, there's a ways to go to full occupancy once the 2 developments of 7,000 are finished over the next decade. The community is around 10 miles away from Daytona Beach and close to hospitals and other services. Many other amenities are planned, and of course, there is always the chance that Jimmy Buffett might perform!
Who would want to pass up the chance to live on Spongecake Court? Come on-admit it, that song is going through your head now....
Sunday, February 25, 2018
As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals. The Court tackles head-on the issue of who has the power to take action to address improper discharges.
On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge." Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits.
In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.
The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland. The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state. As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."
There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see State of Maryland v. Neiswanger Management Services LLC..
For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.
See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.
February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, February 23, 2018
The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note. From the opening paragraphs:
Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.
The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.
Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.
This article is definitely worth a careful read.
February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)